Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
2025 INSC 1111
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11798 OF 2025
(Arising out of SLP (C) No.16830 of 2021)
ITC LIMITED … APPELLANT
VERSUS
STATE OF KARNATAKA & ANR. … RESPONDENTS
WITH
CIVIL APPEAL NO. 11799 OF 2025
(Arising out of SLP (C) No. 18336 of 2022)
J U D G M E N T
R. MAHADEVAN, J.
Leave granted in both the SLPs.
2. The appellant, ITC Limited, is engaged in the business of stationery items
including Exercise Books / Notebooks, Pens, Pencils, etc. under its brand
‘Classmate’. On 02.07.2020, Respondent No.2 acting under Section 15 of the
Signature Not Verified
1
Legal metrology Act, 2009 , conducted an inspection at the appellant’s premises
Digitally signed by
CHANDRESH
Date: 2025.09.12
18:28:35 IST
Reason:
1
For short, “the 2009 Act”
2
situated at Survey No.9/4, A, B 9/2, 9/8 Arjunabettahalli Village, Madurai Road,
Nelamangala Taluk, Bengaluru, and seized 7600 CFCs / packages of ‘Classmate’
exercise books for the alleged violation of Rule 24(a) of the Legal Metrology
2
(Packaged Commodities) Rules, 2011 which is punishable under Section 36(1)
of the 2009 Act. Pursuant to the seizure, a seizure notice and a compounding
notice both dated 02.07.2020 were issued to the appellant. Alleging that no search
warrant was obtained prior to the entry and that the provisions of Sections 100(4)
3
and 165 of the Criminal Procedure Code were not complied with, the appellant
preferred Writ Petition No.8954 of 2020 (GM-RES) under Article 226 of the
4
Constitution of India before the High Court of Karnataka , seeking to quash the
said notices and for a direction to Respondent No.2 to release the seized goods.
3. After hearing both parties, the learned Single Judge of the High Court, by
order dated 04.09.2020, allowed the writ petition, quashed the notices issued by
Respondent No.2, and directed the release of the seized goods, holding that the
search and seizure were conducted without jurisdiction. Aggrieved by the said
order, the respondents filed Writ Appeal No.572 of 2020 (GM-RES).
4. Upon consideration, the Division Bench of the High Court allowed the writ
appeal and set aside the order of the Single Judge, by judgment dated 15.04.2021.
In doing so, it was observed that the requirement of a search warrant does not
2
For short, “the 2011 Rules”
3
For short, “Cr.P.C”
4
For short, “the High Court”
3
arise where action is initiated under Section 15 of the 2009 Act and that the
Authority is duly empowered to inspect, search, and seize. Hence, there was no
illegality or procedural error in the search and seizure undertaken by the
Authority. Feeling aggrieved, the appellant filed Special Leave Petition (C)
No.16830 of 2021 before this Court.
5. In the meanwhile, the appellant also filed Review Petition No.388 of 2021
in Writ Appeal No.572 of 2020 seeking a review of the Division Bench’s
judgment. The said review petition was dismissed, by order dated 10.08.2022,
against which, the appellant filed SLP (C) No.18336 of 2022 before this Court.
6. Pursuant to this Court’s order dated 04.11.2022, SLP (C) No.18336 of 2022
was tagged with SLP (C) No.16830 of 2021. This Court, after hearing the
submissions made by the parties, now proceeds to dispose of both matters by this
common judgment.
7. The learned Senior Counsel appearing for the appellant, at the outset,
submitted that there was no violation of Rule 24 of the 2011 Rules that would
attract the penalty envisaged under Section 36(1) of the 2009 Act, as the CFCs in
question are not “wholesale packages” but are merely meant for the protection
and transportation of goods. Nevertheless, as a matter of abundant caution,
declarations in terms of Rule 24 were affixed on these CFCs. In this regard,
reliance was placed on the judgment in State of Maharashtra and Others v. Raj
4
5
Marketing and Others , which draws a distinction between wholesale and
secondary packages. It was further submitted that despite raising objections
before the respondents and the High Court regarding the inapplicability of the
2009 Act and 2011 Rules, the same were not considered, thereby vitiating the
foundation of the seizure.
7.1. The second submission was that Section 15 of the 2009 Act mandates the
existence of “reasons to believe” as a condition precedent for conducting
inspection or seizure. However, the seizure receipt dated 02.07.2020 does not
disclose any such reasons recorded prior to the search. Further, the compounding
notice issued under Section 48 of the 2009 Act, also dated 02.07.2020, similarly
lacks any disclosure of reasons. The simultaneous issuance of both seizure and
compounding notices, without due deliberation, indicates non-application of
mind on the part of the respondents. While the learned Single Judge rightly
acknowledged this lapse, the Division Bench failed to consider it adequately.
7.2. It was also contended that Section 100(4) Cr.P.C requires the presence of
two or more independent witnesses during the conduct of a search. In the present
case, only one witness – Nagabhushan, a driver employed by Respondent No.2 –
was present. Such a person cannot be considered an “independent witness” within
the meaning of Section 100(4). Moreover, there is no record of any “reasons to
believe” either before or after the search, nor was any urgency or exigency
5
(2011) 15 SCC 525
5
pleaded to justify immediate seizure. The respondents merely relied on Section
102 Cr.P.C., which does not dispense with the statutory requirement of a warrant
or justification for seizure.
7.3. The learned Senior Counsel further contended that the premises in question
– namely, a warehouse owned by the appellant – was not open to the public, and
access was restricted to authorised personnel. Therefore, the respondents were
required to obtain a warrant before conducting any search or seizure. It was also
pointed out that the argument advanced by the respondents before the Division
Bench – that Section 100 Cr.P.C applies only to closed premises – was raised for
the first time during oral arguments and without any pleading or evidence. Such
a submission was made solely to retrospectively justify the respondents’ actions.
Moreover, Section 2(n) of the 2009 Act, which defines “premises”, makes no such
distinction between open and closed premises. The Division Bench’s failure to
consider this aspect, even in the review petition, renders its decision legally
unsustainable.
7.4. The learned Senior Counsel further contended that the appellant had no
alternative efficacious remedy, as the very jurisdictional foundation of the seizure
was illegal. Thus, the appellant rightly invoked the writ jurisdiction under Article
226 of the Constitution. The learned Single Judge of the High Court, by order
dated 04.09.2020, allowed the writ petition on the ground that even where an
alternative remedy exists, a writ petition would lie if the action is without
jurisdiction. However, the Division Bench erroneously reversed the decision,
6
holding that in the absence of a violation of natural justice, the writ was not
maintainable.
7.5. Additionally, it was submitted that the principles of natural justice were
indeed violated, as the seizure and compounding notices were issued
simultaneously, depriving the appellant of any opportunity of being heard. The
appellant’s request for a personal hearing was ignored. Furthermore, the review
petition filed by the appellant against the Division Bench’s judgment was
dismissed summarily, without due consideration of these contentions.
7.6. In view of the above, the learned Senior Counsel prayed to allow these
appeals by setting aside the impugned judgment and order passed by the Division
Bench of the High Court.
8. In response, the learned Counsel for the respondents submitted that the
Legal Metrology Act, 2009 was enacted to ensure consumer protection by
mandating accurate declarations on goods sold by weight, measure, or number.
Compliance with the Act and Rules is essential to safeguard consumer rights. The
requirement for proper declarations on wholesale packages ensures transparency
and accountability in trade practices.
8.1. Continuing further, it was submitted that the inspection and seizure were
conducted at the appellant’s commercial warehouse during working hours. The
premises were neither a private dwelling nor inaccessible. Members of the
appellant’s staff were present during the inspection. The seizure was limited to
7
pre-packed notebooks, which were found to lack mandatory declarations as
required under the Legal Metrology (Packaged Commodities) Rules, 2011. A
seizure mahazar was drawn on-site, and notice was served on the authorised
person present.
8.2. It was also submitted that the warehouse was a place of business, accessible
to others, and not a closed or private premises. Referring to the definition of
“premises” under section 2(n) of the 2009 Act, it was contended that the Division
Bench rightly distinguished between open and closed premises and held that
Section 100 Cr.P.C applies only to closed premises. Thus, the absence of a search
warrant does not vitiate the seizure in this case.
8.3. The learned Counsel further argued that the procedural safeguards under
the Code of Criminal Procedure, 1973 are not applicable in toto to inspections
under the Legal Metrology Act. Section 15(4) of the 2009 Act incorporates
Cr.P.C. provisions only to the extent applicable. Therefore, no warrant is required
under Section 15 when the action is taken to determine compliance with the Act
and the Rules. The Division Bench correctly held that under Section 15, the
competent authority is empowered to enter premises, inspect, search, and seize
goods in case of violations. The seizure notice dated 02.07.2020 (No.0691674)
clearly sets out the nature of the offence and the grounds for seizure.
8.4. The learned Counsel also submitted that Rule 24 of the 2011 Rules
mandates specific declarations on wholesale packages. The seized items –
corrugated fibreboard containers (CFCs) containing pre-packed notebooks – fall
8
within the definition of “wholesale packages” under Rule 2(l) of the 2011 Rules.
Hence, mandatory declarations were required to be directly printed on the
package and not merely affixed through labels, as was done by the appellant. The
respondents denied the appellant’s claim of compliance, and asserted that the
declarations were inadequate and in breach of Rule 24.
8.5. It was further contended that Section 165 Cr.P.C is not applicable and that
seizure of goods can be undertaken without a search warrant under Section 102
Cr.P.C. read with Section 15(4) of the 2009 Act.
8.6. As regards the requirement of independent witnesses under Section 100(4)
Cr.P.C., it was submitted that the action taken was an inspection, not a “search”
in the strict legal sense. Therefore, the presence of two independent witnesses was
not mandatory. The presence of one witness, being a driver of Respondent No.2
does not vitiate the legality of the seizure.
8.7. Finally, the learned Counsel for the respondents submitted that the
appellant had an efficacious statutory remedy under Section 50 of the 2009 Act.
Therefore, the appellant’s decision to approach the High Court directly under
Article 226, without first availing the alternative remedy, was improper and the
writ petition was not maintainable. The allegation that the appellant’s
representation was disregarded, was denied. It was contended that reasonable
opportunity was afforded, and the Division Bench addressed all relevant issues in
detail in its judgment passed in the writ appeal.
9
8.8. In conclusion, it was submitted that the action of Respondent No.2 was in
accordance with law and procedure, and hence, the judgment and order of the
Division Bench warrant no interference at the hands of this court.
9. We have considered the rival submissions and perused the materials
available on record.
10. The principal issue that arises for consideration herein is whether the
inspection and seizure conducted by Respondent No.2 under Section 15 of the
2009 Act, without obtaining a prior warrant, was unlawful and violative of the
principles of natural justice, thereby justifying invocation of writ jurisdiction
under Article 226 of the Constitution.
11. At the outset, it is relevant to extract Section 15 of the 2009 Act, as follows:
"15. Power of inspection, seizure, etc. (1) The Director, Controller or any legal
metrology officer may, if he has any reason to believe, whether from any
information given to him by any person and taken down in writing or from
personal knowledge or otherwise, that any weight or measure or other goods in
relation to which any trade and commerce has taken place or is intended to take
place and in respect of which an offence punishable under this Act appears to
have been, or is likely to be, committed are either kept or concealed in any
premises or are in the course of transportation,-
(a) enter at any reasonable time into any such premises and search for and
inspect any weight, measure or other goods in relation to which trade and
commerce has taken place, or is intended to take place and any record,
register or other document relation thereto;
(b) seize any weight, measure or other goods and any record, register or
other document or article which he has reason to believe may furnish
evidence indicating that an offence punishable under this Act has been, or
is likely to be, committed in the course of, or in relation to, any trade and
commerce.
(2) The Director, Controller or any legal metrology officer may also require the
production of every document or other record relating to the weight or measure
referred to in sub-section (1) and the person having the custody of such weight or
measure shall comply with such requisition.
10
(3) Where any goods seized under sub-section (1) are subject to speedy or natural
decay, the Director, Controller or legal metrology officer may dispose of such
goods in such manner as may be prescribed.
(4) Every search or seizer made under this section shall be carried out in
accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of
1974), relating to searches and seizures."
11.1. From a plain reading of the above provision, it is clear that Section 15(1)
of the 2009 Act contemplates that information may be received orally (which
must be reduced into writing), or by way of personal knowledge, or through
written information. Upon evaluation of such information or knowledge, the
officer must have reason to believe that any weight, measure, or goods, in relation
to which any trade or commerce has taken place or is intended to take place, and
in respect of which an offence has been committed or is likely to be committed,
are kept, concealed, or likely to be transported. In such a situation, the Director,
Controller, or any Legal Metrology Officer may, under Section 15(1)(a), enter
any premises and search and inspect such weight, measure, goods, records,
registers, or other documents. Further, upon having reason to believe that an
offence under the Act has been or is likely to be committed, and that such weight,
measure, goods, records, registers, documents, or articles may furnish evidence
of such offence, the officer may seize the same under section 15(1)(b).
Sub-section (4) provides that such search or seizure shall be carried out in
accordance with the provisions of the Code of Criminal Procedure, 1973.
Therefore, Section 15, on its face, mandates that there must be reasons to believe
both for conducting a search or inspection of premises and for seizure of materials
11
therefrom. In addition, to satisfy the requirements of Section 15, the officials must
also comply with the provisions of the Code of Criminal Procedure relating to
search and seizure.
12. In the present case, the Division Bench of the High Court, considering the
use of the words “search or seizure” in Section 15(4) of the 2009 Act, held that
Section 100 Cr.P.C would apply only in respect of closed premises; and since, the
business premises were open, the pre-requisites under Section 100 Cr.P.C were
not required to be followed. It is, therefore, necessary to examine the scope of
“place of inspection” as defined and applied under the 2009 Act.
13. Section 2(n) of the 2009 Act defines the term “premises” and reads as
follows:
(n) “premises” includes —
(i) a place where any business, industry, production or transaction is carried on
by a person, whether by himself or through an agent, by whatever name called,
including the person who carries on the business in such premises,
(ii) a warehouse, godown or other place where any weight or measure or other
goods are stored or exhibited,
(iii) a place where any books of account or other documents pertaining to any
trade or transaction are kept,
(iv) a dwelling house, if any part thereof is used for the purpose of carrying on
any business, industry, production or trade,
(v) a vehicle or vessel or any other mobile device, with the help of which any
transaction or business is carried on;
13.1. The word “premises” is exhaustive and includes not only a place where
goods are traded or manufactured but also where they are stored. It also includes
the place where books of accounts or other documents are kept, a dwelling house
12
if any part of it is used for business, industry, production, or trade, and even a
vehicle used in the course of business activity.
14. Section 15 contemplates three different actions, namely, search, inspection,
and seizure. The provision authorises an officer entering the premises to conduct
a search for the recovery or discovery of any concealed material used or proposed
to be used in contravention of the Act and, during such search, to inspect such
materials. If the officer has reason to believe that the material may be used as
evidence, he is empowered to seize it. The language of Section 15(1) makes it
clear that the officer must have reason to believe that an offence has been
committed or is likely to be committed and that materials or evidence relevant
thereto are available in the premises. These pre-requisites under Section 15(1) are
common to inspection, search and seizure. Significantly, Section 15(1)(b)
stipulates that, before seizure, the officer must have reason to believe that such
materials, goods, records, or documents may furnish evidence indicating that an
offence under the Act has been committed or is likely to be committed with regard
to goods already traded or likely to be traded. The definition of “premises” and
the phrase “intended to take place” further reinforce that the procedure prescribed
under the Cr.P.C. must be followed even with respect to goods stored in
warehouses or godowns, irrespective of whether open or closed.
15. Chapter VII of the Criminal Procedure Code deals with summons and
searches. Part A concerns summon to produce, Part B relates to search warrants,
Part C lays down general provisions applicable to searches, and Part D contains
13
miscellaneous matters. Section 93 Cr.P.C. empowers a Court to issue a search
warrant in three circumstances: (i)where the Court has reason to believe that a
person to whom a summons or order under Section 91 Cr.P.C. has been or might
be issued, or to whom a requisition under Section 92 has been or might be
addressed, would not comply with such summons, order, or requisition; (ii)where
the thing for which search is to be made is not known to the Court to be in the
possession of any person; and (iii)where a general search or inspection is
considered necessary by the Court. A warrant may specify the particular place or
part of a place to be searched or inspected, and only such place as is mentioned
in the warrant can be entered. Section 93(1)(c) read with sub-section (2) uses the
expression “search or inspect”, thereby signifying that a warrant is mandatory for
both search and inspection, and that the Court must record reasons to believe the
necessity of issuing such warrant. Sections 94 and 95, in turn, deal with warrants
in respect of stolen property, objectionable articles, and forfeited publications.
15.1. Part C commencing with Section 99 provides that the provisions in
Sections 38, 70, 72,74, 77, 78 and 79, shall, as far as may be, apply to search
warrants issued under Sections 93, 94, 95 and 97. These provisions relate to aid
in execution of warrants of arrest, issuance, purpose, endorsement, authorization,
and execution both within and outside India. Section 100(1) prescribes that where
a place required to be searched or inspected is closed, the person in charge, upon
production of the warrant, must allow ingress and afford all facilities for the
search. Section 100(2) states that, in case of non-cooperation, the procedure under
14
Section 47(2) (relating to authority to break open the premises) shall be followed.
Section 100(4) mandates that, before making a search under this Chapter, the
person conducting the search shall call upon two or more independent and
respectable inhabitants of the locality (or other localities, if necessary) to witness
the search. If they refuse, they may be compelled, and if they still fail or refuse,
they are liable to prosecution under Section 187 IPC. Section 100(5) further
requires that persons witnessing the search and seizure must sign the mahazar,
and a copy of such mahazar shall be delivered to the occupant.
15.2. Part D begins with Section 102, which deals with seizure by a police officer
of goods alleged or suspected to be stolen, or goods found under circumstances
creating suspicion of commission of an offence. Section 102(3) requires that such
seizure be immediately reported to the Magistrate having jurisdiction. If the
seized goods cannot be transported to Court, or where there is difficulty in
securing proper accommodation for custody, or where they are no longer
necessary for investigation, they may be handed over to a person upon such
person executing a bond to produce them before the Court as and when required
or under further orders. It is pertinent to note here that goods seized under Section
102 refers to goods recovered or seized during a causal recovery or general
search, such as stolen goods or goods found accidentally, which the officer
believes to be involved in some offence. It does not include goods seized under
Sections 100(4) and 100(5) pursuant to a search or inspection conducted under
Section 93 Cr.P.C. Section 102 thus addresses a distinct situation of seizure
15
during a general search, not during a search or inspection under Section 15 of the
2009 Act. A plain reading of Section 15 of the 2009 Act, along with Sections 93
and 100 (4) - (5) Cr.P.C leads to the irresistible conclusion that, in the absence of
a search, there cannot be any seizure.
16. The respondents have consistently pleaded before both the writ Court and
the Appellate Court that the search and seizure were carried out in accordance
with Section 15 of the 2009 Act. Their present attempt to contend that there was
no search but merely an inspection cannot aid their case, since the pre-requisites
under both Section 15 of the 2009 Act as well as Section 93 Cr.P.C must be
satisfied in either event. The expression ‘closed premises’ denotes premises,
where access is locked or otherwise unavailable to the public except with the
permission of the occupant, and cannot be construed narrowly to exclude open-
air premises, if such access is not generally available to unauthorised persons. A
distinction must be drawn between premises where the public has access for a
limited purpose and premises that are truly public. In the case of a warehouse or
godown, access is granted only to those who have some business connection with
the owner. Even in trading premises, entry is subject to restrictions. Therefore,
merely because a place is open at the time of visit does not mean that the
requirements under Section 15 of the 2009 Act or the Cr.P.C. can be bypassed.
Any officer intending to conduct a search or inspection and effect a seizure must
necessarily follow the prescribed procedure and cannot forcibly enter premises
without warrant or reasons duly recorded. These safeguards, embodied both in
16
the special enactment and the Cr.P.C., are designed to prevent arbitrary action and
to uphold the guarantee of due process.
17. Section 165 Cr.P.C. deals with circumstances and pre-requisites for
searches without warrant. As a general rule, every search must be preceded by a
warrant and reasons to believe must be recorded. Section 165 applies where, due
to exigent circumstances, it is not possible to obtain a search warrant. In such
cases, the officer may, after recording his reasons in writing and specifying, as far
as possible, the thing for which the search is to be made, conduct or cause a search
of the place. Section 165(4) provides that the general provisions relating to
searches contained in Section 100 also apply to searches under Section 165. It is
therefore clear that even under Section 165, the existence of reasons to believe
that an imminent search is necessary, must be recorded, with as much detail as
possible. The mandate of Section 100(4) must also be satisfied even in searches
under Section 165.
18. It must also be recalled that Section 15(4) of the 2009 Act requires
compliance with the provisions of the Cr.P.C. relating to search or seizure when
such actions are taken under the Act. Section 51 of the 2009 Act, expressly lays
down that Section 153 Cr.P.C dealing with preventive action of the police, or the
provisions of the IPC as they then stood, are not applicable to matters under the
Legal Metrology Act. Therefore, the reference in Section 15(4) of the 2009 Act
to the provisions of the Cr.P.C. cannot be read to mean that Section 165 Cr.P.C
can be invoked only if an offence has already been registered. Section 165 itself,
17
under sub-section (4), makes other provisions of the Code applicable, leaving no
room for ambiguity. Moreover, Section 165 speaks of searches during an
investigation; it comes into operation once an investigation commences.
18.1. At this juncture, it will be useful to refer to the judgement of this Court in
6
the State of Madhya Pradesh v. Mubarak Ali , wherein the High Court had held
that the investigation was initiated by the Inspector even before obtaining the
mandatory prior permission, which was sought only after a lapse of ten days. This
Court upheld the finding of the High Court and categorically held that the
requirement of prior permission is a condition precedent for a valid investigation
and not a mere procedural formality that can be cured retrospectively. Since the
defect went to the root of jurisdiction, the belated sanction could not validate the
investigation, and the appeal preferred by the State was accordingly dismissed.
While so, the Court elucidated the scope of the term “investigation” in the
following terms:
“12. In this view no other question arises for consideration. But as the learned
Counsel appearing for the State contended that the observations of the learned
Judge of the High Court that permission of the Magistrate was obtained ten days
after the investigation was started was wrong, it would be as well that we
considered the argument briefly. Section 4(1) of the Code of Criminal Procedure
defines "investigation" as to include all the proceedings under that Code for the
collection of evidence conducted by the police officer or other persons other than
a Magistrate who is authorised by the Magistrate in this behalf. Chapter XIV of
the Code prescribes the procedure for investigation. Investigation starts after the
police officer receives information in regard to an offence. Under the Code
"investigation consists generally of the following steps : (i) proceeding to the spot;
(ii) ascertainment of the facts and circumstances of the case; (iii) discovery and
arrest of the suspected offender; (iv) collection of evidence relating to the
6
MANU/SC/0038/1959 : AIR 1959 SC 707
18
commission of the offence which may consist of (a) the examination of various
persons (including the accused) and the reduction of their statements into writing,
if the officer thinks fit, (b) the search of places of seizure of things considered
necessary for the investigation and to be produced at the trial; and (v) formation
of the opinion as to whether on the material collected there is a case to place the
accused before a Magistrate for trial and if so taking the necessary steps for the
same by the filing of a charge-sheet under s. 173.” - See H. N. Rishbud and Inder
Singh v. The State of Delhi MANU/SC/0049/1954 : 1955CriLJ526 …..”
19. As seen above, Section 15 of the 2009 Act and Section 93 Cr.P.C speak about
search and inspection. Both provisions treat “search” and “inspection” as distinct
actions. Inspection refers to the verification of the books, records, or documents
at the premises of a person, which is generally permissible under the respective
law upon compliance with the prerequisites of authorization, recording of reasons
to believe, and permission from the competent authority under law. It is made to
verify compliance with the statute. A search, on the other hand, has a wider
connotation. It implies the power to look in any place for any materials, goods,
books, or documents believed to be secreted or concealed, which may evidence a
violation and may be liable to seizure or confiscation. Further, to conduct either
a search or an inspection, not only is a warrant ordinarily necessary, but there
must also be reasons to believe that such a search is required.
19.1. Seizure refers to the act of taking the material object into custody for the
purpose of investigation or enquiry. Detention refers to a situation where the
owner, though retaining possession of the goods, is restrained from using them.
There is also a subtle difference where a search followed by seizure is effected
under a special enactment, which contemplates a sequence of mandatory steps.
19
Such proceedings are initiated not merely to charge a person with a violation but
also to prevent further violations, as in the present case.
19.2. In every search conducted under a special enactment without a warrant, the
requirement of recording reasons to believe is mandatory. The reasons
necessitating the search must be relevant and must reflect application of mind
based on some information – either from a third party or personal knowledge –
and cannot be based on mere presumption or extraneous considerations. Such
reasons cannot rest on mere suspicion or subjective satisfaction; something more
substantial is required for a prudent person to conclude that a search and/or
seizure is necessary.
19.3. Similarly, there must be application of mind before seizing goods,
materials, or documents during a search. A rational nexus must exist between the
articles seized and the contemplated violation under the applicable provisions.
The authority effecting the seizure must record reasons for such seizure, and those
reasons must demonstrate due application of mind to the materials available.
[ See: State of Madhya Pradesh v. Mubarak Ali (supra) and Radhika Agarwal
7
v. Union of India .]
19.4. Further, this Court in Narayanappa and others v. Commissioner of
8
Income Tax, Bangalore while considering the expression “reason to believe”,
held as follows:
7
2025 LiveLaw SC 255
8
MANU/SC/0124/1966: AIR 1967 SC 623
20
“4. The belief must be held in good faith: it cannot be merely a pretence. To put it
differently it is open to the Court to examine the question whether the reasons for
the belief have a rational connection or a relevant bearing to the formation of the
belief and are not extraneous or irrelevant to the purpose of the section. To this
limited extent, the action of the Income-tax Officer in starting proceedings under
s. 34 of the Act is open to challenge in a court of law.”
19.5. It is also pertinent to mention here that various special enactments, such as
the Legal Metrology Act, 2009, the Income Tax Act, 1961, the Customs Act,
1962, the Central Excise Act, 1944, the Finance Act, 1994, the Goods and Service
Tax Act, 2017, the Narcotic Drugs and Psychotropic Substances Act, 1985, as
well as several repealed indirect Tax Laws of different States, contain provisions
relating to search and seizure. The above list is illustrative and not exhaustive, as
there are many other enactments with similar provisions. In all such enactments,
the object of search and seizure is, more often than not, to collect evidence
relating to an ongoing investigation of an offence or violation, and in some cases,
to prevent a violation. Further, in all these enactments, the procedure prescribed
under the Cr.P.C, insofar as it is applicable to search and seizure, is to be followed.
It is also settled law that unless the provisions of the Cr.P.C. are explicitly
excluded, the same shall apply to special enactments as well. [ See: Ashok
Munilal Jain and another v. the Assistant Director, Directorate of
9
Enforcement , and Radhika Agarwal v. Union of India (supra) ]. Therefore, the
ratio laid down by this Court in the various judgments could not have been
ignored by the Division Bench of the High Court.
9
2018 (16) SCC 158
21
20. In the present case, the respondent authorities conducted a search and
inspection on 02.07.2020 during business hours at a commercial warehouse
belonging to the appellant and seized 7,600 pre-packed wholesale packages of
exercise books, for alleged violations of Rule 24(a) of the 2011 Rules and Section
36(1) of the 2009 Act. The search was conducted without a warrant, and no
reasons were admittedly recorded either for conducting the search or inspection,
or for seizure of goods. Therefore, the search and seizure are clearly vitiated by
procedural violations.
20.1. Observance of due process of law and the principles of natural justice being
intertwined, is a legal necessity to ensure that the action of the authorities does
not result in manifest arbitrariness or abuse and misuse of power by those
empowered to conduct inspection, search, and/or seizure. When the law
prescribes a particular procedure to be followed while taking action, the same
must be strictly adhered to. The Constitutional Bench of this Court in State of
10
Punjab v. Baldev Singh and others , categorically held that it is an imperative
requirement that an empowered officer intending to search a person for
possession of articles covered by the NDPS Act, must inform such person that he
has a right to be searched, if he so chooses, before a Gazetted Officer or a
Magistrate. This safeguard was recognised as a substantive right conferred on the
accused, designed to ensure fairness and transparency, and therefore, required to
10
MANU/SC/0981/1999: AIR 1999 SC 2378
22
be followed scrupulously. The Court further held that the obligation is to inform
the accused of his right, though not necessarily in writing, and any failure to
comply with this mandate would vitiate the search as being illegal and contrary
to law. While considering procedural violations, the Bench cautioned as under:
“57. On the basis of the reasoning and discussion above, the following
conclusions arise:
…
(4) That there is indeed need to protect society from criminals. The societal intent
in safety will suffer if persons who commit crimes are let off because the evidence
against them is to be treated as if it does not exist. The answer, therefore, is that
the investigating agency must follow the procedure as envisaged by the statute
scrupulously and the failure to do so must be viewed by the higher authorities
seriously inviting action against the concerned official so that the laxity on the
part of the investigating authority is curbed. In every case the end result is
important but the means to achieve it must remain above board. The remedy
cannot be worse than the disease itself. The legitimacy of judicial process may
come under cloud if the court is seen to condone acts of lawlessness conducted by
the investigating agency during search operations and may also undermine
respect for law and may have the effect of unconscionably compromising the
administration of justice. That cannot be permitted. An accused is entitled to a
fair trial. A conviction resulting from an unfair trial is contrary to our concept of
justice. The use of evidence collected in breach of the safeguards provided by
Section 50 at the trial, would render the trial unfair.
…”
11
20.2. In State of Rajasthan v. Rehman , the question that arose for
consideration was whether the provisions of Section 165 Cr.P.C could be invoked
in respect of a search conducted by an Excise Officer under the Central Excise
and Salt Act, 1944. The search in that case had been effected without recording
reasons as mandated under Section 165 Cr.P.C. The Court observed that Section
18 of the Act expressly stipulated that searches under the Act shall be carried out
11
MANU/SC/0181/1959 : AIR 1960 SC 210
23
in accordance with the provisions of the Cr.P.C. Consequently, it was held that
Section 165 Cr.P.C was squarely attracted and that the search, having been
conducted in violation of the said requirement, was illegal. The following
paragraphs are apposite:
“7. Now we shall look at the provisions of the Criminal Procedure Code to
ascertain which of its provisions regulating the mode of search are appropriate to
the power conferred on the Deputy Superintendent under r. 201 of the Rules. In
the Criminal Procedure Code there are four groups of sections regulating the
searches authorised under it. Sections 47, 48, 51 and 52 appear in Ch. V of the
Code which provides for the arrest, escape and retaking of persons. Section
47 provides for the search of a place entered by persons sought to be arrested; s.
48 for procedure where ingress is not obtainable; and Sections 51 and 52 for the
search of the arrested persons. The second group consists of Sections 100, 101,
102 and 103 of Ch. VII of the Code. Section 100 deals with the search for persons
wrongfully confined, and the other sections are general provisions relating to
search warrants, duties of persons in charge of closed places and the
requisitioning of persons to witness searches. Section 153 forms the third group
and it falls under Ch. XIII of the Code which provides for the preventive action of
the police. Under s. 153, a police officer can make a search without a warrant for
the purpose of inspecting or searching for any weights or measures or instruments
for weighing used or kept within the limits of his station, if he has reason to believe
that the weights etc. are false. The fourth group of sections appear in Ch. XIV
which provides for searches by a police officer during the investigation of a
cognizable offence. The power of search given under this chapter is incidental to
the conduct of investigation the police officer is authorized by law to make. Under
s. 165 four conditions are imposed : (i) the police officer must have reasonable
ground for believing that anything necessary for the purposes of an investigation
of an offence cannot, in his opinion, be obtained otherwise than by making a
search, without undue delay; (ii) he should record in writing the grounds of his
belief and specify in such writing as far as possible the things for which the search
is to be made; (ii) he must conduct the search, if practicable, in person; and (iv)
if it is not practicable to make the search himself, he must record in writing the
reasons for not himself making the search and shall authorize a subordinate
officer to make the search after specifying in writing the place to be searched,
and, so far as possible, the thing for which search is to be made. As search is a
process exceedingly arbitrary in character, stringent statutory conditions are
imposed on the exercise of the power. A comparative study of the aforesaid
provisions with the provisions of r. 201 of the Rules indicates that searches made
by a police officer during the course of an investigation of a cognizable offence
24
can properly be approximated with the searches to be made by the authorized
officer under r. 201 of the rules; for, in the former case, the police officer makes a
search during the investigation of a cognizable office and in the latter the
authorized officer makes the search to ascertain whether a person contravened
the provisions of the Act or the Rules which is an offence. There is also no reason
why conditions should be imposed in the matter of a search by the police officer
under s. 165 of the code, but no such safe-guard need be provided in the case of a
search by the excises under the Rules. We think that the legislature, by stating in
s. 18 of the Act that the searches under the Act and the Rules shall be carried out
in accordance with the provisions of the Code relating to searches, clearly
indicated that the appropriate provisions of the Code shall govern searches
authorized under the Act and the Rules. We therefore hold that the provisions of s.
165 of the Code must be followed in the matter of searches under s. 201 of the
Rules.
8. There are no merits in the second contention either. The recording of reasons
does not confer on the officer jurisdiction to make a search, though it is a
necessary condition for making a search. The jurisdiction or the power to make a
search is conferred by the statute and not derived from the record of reason. That
apart, s. 18 of the Act in express terms states that searches shall be carried out in
accordance with the provisions of the Code of Criminal Procedure. Section 165 of
the Code lays down various steps to be followed in making a search. The recording
of reasons is an importing step in the matter of search and to ignore it is to ignore
the material part of the provisions governing searches. If that can be ignored, it
cannot be said that the search is carried out in accordance with the provisions of
the Code of Criminal Procedure: it would be a search made in contravention of
the provisions of the Code.
9. For the reasons mentioned, we hold that the search made by the Deputy
Superintendent in the present case in contravention of the provisions of s. 165 of
the Code was illegal.”
12
20.3. This Court in Ravinder Kumar v. State of Haryana , held that the very
action of search stood vitiated and, accordingly, allowed the appeal preferred by
the appellant by quashing the complaint and FIR registered against him. In that
case, the search had been conducted in violation of the mandatory safeguards
prescribed under Section 30(1) of the Pre-Conception and Pre-natal Diagnostic
12
MANU/SC/1006/2024 : AIR 2024 SC 4311
25
Techniques (Prohibition of Sex Selection) Act, 1994. It was observed that, apart
from what was discovered during the illegal search and the documents seized in
consequence thereof, there was no material whatsoever connecting the accused
to the offence punishable under Section 23 of the 1994 Act. Since the search itself
was wholly illegal, continuation of prosecution founded solely on such an
unlawful search was held to be an abuse of the process of law. The relevant
paragraphs read as under:
“12. The question is what meaning can be assigned to the expression "has reason
to believe". Section 26 of the Indian Penal Code defines the expression "reason to
believe", which reads thus:
26. "Reason to believe".- A person is said to have "reason to believe" a
thing, if he has sufficient cause to believe that thing but not otherwise.
In the case of Aslam Mohammad Merchant v. Competent Authority and Ors.
MANU/SC/2959/2008 : 2008:INSC:782 : (2008) 14 SCC 186, this Court had an
occasion to interpret the same expression. In paragraph 41, this Court held thus:
41. It is now a trite law that whenever a statute provides for "reason to
believe", either the reasons should appear on the face of the notice or they
must be available on the materials which had been placed before him.
However, interpretation of the expression will depend on the context in which it is
used in a particular legislation. In some statutes like the present one, there is a
power to initiate action under the statute if the authority has reason to believe that
certain facts exist. The test is whether a reasonable man, under the circumstances
placed before him, would be propelled to take action under the statute.
Considering the object of the 1994 Act, the expression "reason to believe" cannot
be construed in a manner which would create a procedural roadblock. The reason
is that once there is any material placed before the Appropriate Authority based
on which action of search is required to be undertaken, if the action is delayed,
the very object of passing orders of search would be frustrated. Therefore, what
is needed is that the complaint or other material received by the appropriate
authority or its members should be immediately made available to all its members.
After examining the same, the Appropriate authority must expeditiously decide
whether there is a reason to believe that an offence under the 1994 Act has been
or is being committed. The Appropriate Authority is not required to record reasons
for concluding that it has reason to believe that an offence under the 1994 Act has
26
been or is being committed. But, there has to be a rational basis to form that belief.
However, the decision to take action Under Sub-section (1) of Section 30 must be
of the Appropriate Authority and not of its individual members.
14. Therefore, in the facts of the case, no legal decision was made by the
Appropriate Authority in terms of Sub-section (1) of Section 30 to search for the
Appellant's clinic. As stated earlier, Sub-section (1) of Section 30 provides a
safeguard by laying down that only if the Appropriate Authority has reason to
believe that an offence under the 1994 Act has been committed or is being
committed that a search can be authorized. In this case, there is no decision of the
Appropriate Authority, and the decision to carry out the search is an individual
decision of the Civil Surgeon, who was the Chairman of the concerned
Appropriate Authority. Therefore, the action of search is itself vitiated.
16. A perusal of the impugned FIR and impugned complaint shows that its
foundation is the material seized during the raid on 27th April 2017. Except for
what was found in the search and the seized documents, there is nothing to connect
the Accused with the offence punishable Under Section 23 of the 1994 Act. As the
search itself is entirely illegal, continuing prosecution based on such an illegal
search will amount to abuse of the process of law. The High Court ought to have
noticed the illegality we have pointed out.”
21. We have already held that Sections 100(4) and 100(5) Cr.P.C are
applicable to the present case. Accordingly, the presence of two respectable
independent witnesses from the locality was mandatory. It is significant to note
that such witnesses may also be drawn from a different locality, provided they
meet the requirements of independence and respectability. In the present case,
however, the driver of the Assistant Controller – being a party to the inspection –
acted as a witness, which is in violation of law. Although the respondents claimed
that no one from the locality was forthcoming, there is nothing on record to
indicate who was approached, when such request was made, whether a written
request was given, and what further action was taken. The seizure mahazar also
27
fails to support the respondents’ case, as it records none of the claims now relied
upon in their defence. It is settled law that where the initial proceedings are
vitiated, all subsequent proceedings are unsustainable. Any act in violation of law
cannot be brushed aside on the ground that no prejudice was caused; every
violation of law is deemed to cause some prejudice.
22 . Further, there is nothing on record to suggest that the goods in the container
differed from the particulars on the label, either in form, quality, or weight. The
seizure mahazar only noted that the packages lacked clear and conspicuous
declarations as required under Rule 24(a), which mandates that declarations on
wholesale packages be printed and not affixed by way of a label. It is not disputed
by the respondents that disclosures were made; their contention is merely that
they were affixed as labels rather than printed. The appellant contended that the
goods were stored in CFCs for transportation and that a label declaring the
particulars required under law was duly affixed. The alleged violation was
therefore, at best, technical. This contention is fortified by the judgment of this
13
Court in State of Maharashtra and others v. Raj Marketing and another , and
the accompanying clarification notification which explicitly stated that there was
no bar on affixing labels on wholesale packages. FAQs 17 and 19 further clarify
that storage in containers for transportation does not constitute wholesale
packaging.
13
(2011) 15 SCC 525
28
23. In view of the foregoing, the entire proceedings from search to seizure are
illegal and unsustainable, as neither a warrant was obtained nor reasons recorded
for search, inspection, or seizure. The mandatory safeguards under Section 15 of
the 2009 Act, and Sections 165, 100(4) and 100(5) Cr.P.C were disregarded. The
2009 Act itself contemplates action against officials violating its provisions under
Sections 42 and 43. Compliance with statutory procedures, including recording
“reasons to believe” before initiating search or seizure, is incumbent upon
officials; non-compliance renders the action futile and results in arbitrary excise
of authority. In the present case, the respondents not only violated Section 15 of
the 2009 Act, but also failed to comply with Sections 100(4) and 165 Cr.P.C.
Further, there is nothing on record to show that the search was so imminent as to
justify dispensing with a warrant. On the same day as the inspection, search, and
seizure, a notice under Section 48 of the 2009 Act was issued, specifying a
compounding fee for contraventions of Sections 29, 36(1), and 36(2) of the Act,
and Rules 18(2) and 27 of the 2011 Rules, and directing the appellant to respond
within 15 days, failing which further legal action would follow. The Single Judge
of the High Court correctly set aside these notices, but the Division Bench
erroneously reversed the order. Therefore, the notices/orders issued by the
respondents, as well as the judgment and order of the Division Bench of the High
Court deserve to be quashed and are quashed. As a consequence, the order of the
Single Judge stands restored.
29
24. Accordingly, the appeal arising out of the judgment in WA No. 572 of 2020
is allowed. Since the writ appeal judgment has been set aside, no further orders
are necessary in the appeal filed against dismissal of the Review Petition, which
is disposed of. There shall be no order as to costs.
25. Connected Miscellaneous Application(s), if any, stand disposed of.
…..…………………J.
[J.B. PARDIWALA]
………………….…J.
[R. MAHADEVAN]
NEW DELHI;
SEPTEMBER 12, 2025.
REPORTABLE
IN THE SUPREME COURT OF INDIA
2025 INSC 1111
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11798 OF 2025
(Arising out of SLP (C) No.16830 of 2021)
ITC LIMITED … APPELLANT
VERSUS
STATE OF KARNATAKA & ANR. … RESPONDENTS
WITH
CIVIL APPEAL NO. 11799 OF 2025
(Arising out of SLP (C) No. 18336 of 2022)
J U D G M E N T
R. MAHADEVAN, J.
Leave granted in both the SLPs.
2. The appellant, ITC Limited, is engaged in the business of stationery items
including Exercise Books / Notebooks, Pens, Pencils, etc. under its brand
‘Classmate’. On 02.07.2020, Respondent No.2 acting under Section 15 of the
Signature Not Verified
1
Legal metrology Act, 2009 , conducted an inspection at the appellant’s premises
Digitally signed by
CHANDRESH
Date: 2025.09.12
18:28:35 IST
Reason:
1
For short, “the 2009 Act”
2
situated at Survey No.9/4, A, B 9/2, 9/8 Arjunabettahalli Village, Madurai Road,
Nelamangala Taluk, Bengaluru, and seized 7600 CFCs / packages of ‘Classmate’
exercise books for the alleged violation of Rule 24(a) of the Legal Metrology
2
(Packaged Commodities) Rules, 2011 which is punishable under Section 36(1)
of the 2009 Act. Pursuant to the seizure, a seizure notice and a compounding
notice both dated 02.07.2020 were issued to the appellant. Alleging that no search
warrant was obtained prior to the entry and that the provisions of Sections 100(4)
3
and 165 of the Criminal Procedure Code were not complied with, the appellant
preferred Writ Petition No.8954 of 2020 (GM-RES) under Article 226 of the
4
Constitution of India before the High Court of Karnataka , seeking to quash the
said notices and for a direction to Respondent No.2 to release the seized goods.
3. After hearing both parties, the learned Single Judge of the High Court, by
order dated 04.09.2020, allowed the writ petition, quashed the notices issued by
Respondent No.2, and directed the release of the seized goods, holding that the
search and seizure were conducted without jurisdiction. Aggrieved by the said
order, the respondents filed Writ Appeal No.572 of 2020 (GM-RES).
4. Upon consideration, the Division Bench of the High Court allowed the writ
appeal and set aside the order of the Single Judge, by judgment dated 15.04.2021.
In doing so, it was observed that the requirement of a search warrant does not
2
For short, “the 2011 Rules”
3
For short, “Cr.P.C”
4
For short, “the High Court”
3
arise where action is initiated under Section 15 of the 2009 Act and that the
Authority is duly empowered to inspect, search, and seize. Hence, there was no
illegality or procedural error in the search and seizure undertaken by the
Authority. Feeling aggrieved, the appellant filed Special Leave Petition (C)
No.16830 of 2021 before this Court.
5. In the meanwhile, the appellant also filed Review Petition No.388 of 2021
in Writ Appeal No.572 of 2020 seeking a review of the Division Bench’s
judgment. The said review petition was dismissed, by order dated 10.08.2022,
against which, the appellant filed SLP (C) No.18336 of 2022 before this Court.
6. Pursuant to this Court’s order dated 04.11.2022, SLP (C) No.18336 of 2022
was tagged with SLP (C) No.16830 of 2021. This Court, after hearing the
submissions made by the parties, now proceeds to dispose of both matters by this
common judgment.
7. The learned Senior Counsel appearing for the appellant, at the outset,
submitted that there was no violation of Rule 24 of the 2011 Rules that would
attract the penalty envisaged under Section 36(1) of the 2009 Act, as the CFCs in
question are not “wholesale packages” but are merely meant for the protection
and transportation of goods. Nevertheless, as a matter of abundant caution,
declarations in terms of Rule 24 were affixed on these CFCs. In this regard,
reliance was placed on the judgment in State of Maharashtra and Others v. Raj
4
5
Marketing and Others , which draws a distinction between wholesale and
secondary packages. It was further submitted that despite raising objections
before the respondents and the High Court regarding the inapplicability of the
2009 Act and 2011 Rules, the same were not considered, thereby vitiating the
foundation of the seizure.
7.1. The second submission was that Section 15 of the 2009 Act mandates the
existence of “reasons to believe” as a condition precedent for conducting
inspection or seizure. However, the seizure receipt dated 02.07.2020 does not
disclose any such reasons recorded prior to the search. Further, the compounding
notice issued under Section 48 of the 2009 Act, also dated 02.07.2020, similarly
lacks any disclosure of reasons. The simultaneous issuance of both seizure and
compounding notices, without due deliberation, indicates non-application of
mind on the part of the respondents. While the learned Single Judge rightly
acknowledged this lapse, the Division Bench failed to consider it adequately.
7.2. It was also contended that Section 100(4) Cr.P.C requires the presence of
two or more independent witnesses during the conduct of a search. In the present
case, only one witness – Nagabhushan, a driver employed by Respondent No.2 –
was present. Such a person cannot be considered an “independent witness” within
the meaning of Section 100(4). Moreover, there is no record of any “reasons to
believe” either before or after the search, nor was any urgency or exigency
5
(2011) 15 SCC 525
5
pleaded to justify immediate seizure. The respondents merely relied on Section
102 Cr.P.C., which does not dispense with the statutory requirement of a warrant
or justification for seizure.
7.3. The learned Senior Counsel further contended that the premises in question
– namely, a warehouse owned by the appellant – was not open to the public, and
access was restricted to authorised personnel. Therefore, the respondents were
required to obtain a warrant before conducting any search or seizure. It was also
pointed out that the argument advanced by the respondents before the Division
Bench – that Section 100 Cr.P.C applies only to closed premises – was raised for
the first time during oral arguments and without any pleading or evidence. Such
a submission was made solely to retrospectively justify the respondents’ actions.
Moreover, Section 2(n) of the 2009 Act, which defines “premises”, makes no such
distinction between open and closed premises. The Division Bench’s failure to
consider this aspect, even in the review petition, renders its decision legally
unsustainable.
7.4. The learned Senior Counsel further contended that the appellant had no
alternative efficacious remedy, as the very jurisdictional foundation of the seizure
was illegal. Thus, the appellant rightly invoked the writ jurisdiction under Article
226 of the Constitution. The learned Single Judge of the High Court, by order
dated 04.09.2020, allowed the writ petition on the ground that even where an
alternative remedy exists, a writ petition would lie if the action is without
jurisdiction. However, the Division Bench erroneously reversed the decision,
6
holding that in the absence of a violation of natural justice, the writ was not
maintainable.
7.5. Additionally, it was submitted that the principles of natural justice were
indeed violated, as the seizure and compounding notices were issued
simultaneously, depriving the appellant of any opportunity of being heard. The
appellant’s request for a personal hearing was ignored. Furthermore, the review
petition filed by the appellant against the Division Bench’s judgment was
dismissed summarily, without due consideration of these contentions.
7.6. In view of the above, the learned Senior Counsel prayed to allow these
appeals by setting aside the impugned judgment and order passed by the Division
Bench of the High Court.
8. In response, the learned Counsel for the respondents submitted that the
Legal Metrology Act, 2009 was enacted to ensure consumer protection by
mandating accurate declarations on goods sold by weight, measure, or number.
Compliance with the Act and Rules is essential to safeguard consumer rights. The
requirement for proper declarations on wholesale packages ensures transparency
and accountability in trade practices.
8.1. Continuing further, it was submitted that the inspection and seizure were
conducted at the appellant’s commercial warehouse during working hours. The
premises were neither a private dwelling nor inaccessible. Members of the
appellant’s staff were present during the inspection. The seizure was limited to
7
pre-packed notebooks, which were found to lack mandatory declarations as
required under the Legal Metrology (Packaged Commodities) Rules, 2011. A
seizure mahazar was drawn on-site, and notice was served on the authorised
person present.
8.2. It was also submitted that the warehouse was a place of business, accessible
to others, and not a closed or private premises. Referring to the definition of
“premises” under section 2(n) of the 2009 Act, it was contended that the Division
Bench rightly distinguished between open and closed premises and held that
Section 100 Cr.P.C applies only to closed premises. Thus, the absence of a search
warrant does not vitiate the seizure in this case.
8.3. The learned Counsel further argued that the procedural safeguards under
the Code of Criminal Procedure, 1973 are not applicable in toto to inspections
under the Legal Metrology Act. Section 15(4) of the 2009 Act incorporates
Cr.P.C. provisions only to the extent applicable. Therefore, no warrant is required
under Section 15 when the action is taken to determine compliance with the Act
and the Rules. The Division Bench correctly held that under Section 15, the
competent authority is empowered to enter premises, inspect, search, and seize
goods in case of violations. The seizure notice dated 02.07.2020 (No.0691674)
clearly sets out the nature of the offence and the grounds for seizure.
8.4. The learned Counsel also submitted that Rule 24 of the 2011 Rules
mandates specific declarations on wholesale packages. The seized items –
corrugated fibreboard containers (CFCs) containing pre-packed notebooks – fall
8
within the definition of “wholesale packages” under Rule 2(l) of the 2011 Rules.
Hence, mandatory declarations were required to be directly printed on the
package and not merely affixed through labels, as was done by the appellant. The
respondents denied the appellant’s claim of compliance, and asserted that the
declarations were inadequate and in breach of Rule 24.
8.5. It was further contended that Section 165 Cr.P.C is not applicable and that
seizure of goods can be undertaken without a search warrant under Section 102
Cr.P.C. read with Section 15(4) of the 2009 Act.
8.6. As regards the requirement of independent witnesses under Section 100(4)
Cr.P.C., it was submitted that the action taken was an inspection, not a “search”
in the strict legal sense. Therefore, the presence of two independent witnesses was
not mandatory. The presence of one witness, being a driver of Respondent No.2
does not vitiate the legality of the seizure.
8.7. Finally, the learned Counsel for the respondents submitted that the
appellant had an efficacious statutory remedy under Section 50 of the 2009 Act.
Therefore, the appellant’s decision to approach the High Court directly under
Article 226, without first availing the alternative remedy, was improper and the
writ petition was not maintainable. The allegation that the appellant’s
representation was disregarded, was denied. It was contended that reasonable
opportunity was afforded, and the Division Bench addressed all relevant issues in
detail in its judgment passed in the writ appeal.
9
8.8. In conclusion, it was submitted that the action of Respondent No.2 was in
accordance with law and procedure, and hence, the judgment and order of the
Division Bench warrant no interference at the hands of this court.
9. We have considered the rival submissions and perused the materials
available on record.
10. The principal issue that arises for consideration herein is whether the
inspection and seizure conducted by Respondent No.2 under Section 15 of the
2009 Act, without obtaining a prior warrant, was unlawful and violative of the
principles of natural justice, thereby justifying invocation of writ jurisdiction
under Article 226 of the Constitution.
11. At the outset, it is relevant to extract Section 15 of the 2009 Act, as follows:
"15. Power of inspection, seizure, etc. (1) The Director, Controller or any legal
metrology officer may, if he has any reason to believe, whether from any
information given to him by any person and taken down in writing or from
personal knowledge or otherwise, that any weight or measure or other goods in
relation to which any trade and commerce has taken place or is intended to take
place and in respect of which an offence punishable under this Act appears to
have been, or is likely to be, committed are either kept or concealed in any
premises or are in the course of transportation,-
(a) enter at any reasonable time into any such premises and search for and
inspect any weight, measure or other goods in relation to which trade and
commerce has taken place, or is intended to take place and any record,
register or other document relation thereto;
(b) seize any weight, measure or other goods and any record, register or
other document or article which he has reason to believe may furnish
evidence indicating that an offence punishable under this Act has been, or
is likely to be, committed in the course of, or in relation to, any trade and
commerce.
(2) The Director, Controller or any legal metrology officer may also require the
production of every document or other record relating to the weight or measure
referred to in sub-section (1) and the person having the custody of such weight or
measure shall comply with such requisition.
10
(3) Where any goods seized under sub-section (1) are subject to speedy or natural
decay, the Director, Controller or legal metrology officer may dispose of such
goods in such manner as may be prescribed.
(4) Every search or seizer made under this section shall be carried out in
accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of
1974), relating to searches and seizures."
11.1. From a plain reading of the above provision, it is clear that Section 15(1)
of the 2009 Act contemplates that information may be received orally (which
must be reduced into writing), or by way of personal knowledge, or through
written information. Upon evaluation of such information or knowledge, the
officer must have reason to believe that any weight, measure, or goods, in relation
to which any trade or commerce has taken place or is intended to take place, and
in respect of which an offence has been committed or is likely to be committed,
are kept, concealed, or likely to be transported. In such a situation, the Director,
Controller, or any Legal Metrology Officer may, under Section 15(1)(a), enter
any premises and search and inspect such weight, measure, goods, records,
registers, or other documents. Further, upon having reason to believe that an
offence under the Act has been or is likely to be committed, and that such weight,
measure, goods, records, registers, documents, or articles may furnish evidence
of such offence, the officer may seize the same under section 15(1)(b).
Sub-section (4) provides that such search or seizure shall be carried out in
accordance with the provisions of the Code of Criminal Procedure, 1973.
Therefore, Section 15, on its face, mandates that there must be reasons to believe
both for conducting a search or inspection of premises and for seizure of materials
11
therefrom. In addition, to satisfy the requirements of Section 15, the officials must
also comply with the provisions of the Code of Criminal Procedure relating to
search and seizure.
12. In the present case, the Division Bench of the High Court, considering the
use of the words “search or seizure” in Section 15(4) of the 2009 Act, held that
Section 100 Cr.P.C would apply only in respect of closed premises; and since, the
business premises were open, the pre-requisites under Section 100 Cr.P.C were
not required to be followed. It is, therefore, necessary to examine the scope of
“place of inspection” as defined and applied under the 2009 Act.
13. Section 2(n) of the 2009 Act defines the term “premises” and reads as
follows:
(n) “premises” includes —
(i) a place where any business, industry, production or transaction is carried on
by a person, whether by himself or through an agent, by whatever name called,
including the person who carries on the business in such premises,
(ii) a warehouse, godown or other place where any weight or measure or other
goods are stored or exhibited,
(iii) a place where any books of account or other documents pertaining to any
trade or transaction are kept,
(iv) a dwelling house, if any part thereof is used for the purpose of carrying on
any business, industry, production or trade,
(v) a vehicle or vessel or any other mobile device, with the help of which any
transaction or business is carried on;
13.1. The word “premises” is exhaustive and includes not only a place where
goods are traded or manufactured but also where they are stored. It also includes
the place where books of accounts or other documents are kept, a dwelling house
12
if any part of it is used for business, industry, production, or trade, and even a
vehicle used in the course of business activity.
14. Section 15 contemplates three different actions, namely, search, inspection,
and seizure. The provision authorises an officer entering the premises to conduct
a search for the recovery or discovery of any concealed material used or proposed
to be used in contravention of the Act and, during such search, to inspect such
materials. If the officer has reason to believe that the material may be used as
evidence, he is empowered to seize it. The language of Section 15(1) makes it
clear that the officer must have reason to believe that an offence has been
committed or is likely to be committed and that materials or evidence relevant
thereto are available in the premises. These pre-requisites under Section 15(1) are
common to inspection, search and seizure. Significantly, Section 15(1)(b)
stipulates that, before seizure, the officer must have reason to believe that such
materials, goods, records, or documents may furnish evidence indicating that an
offence under the Act has been committed or is likely to be committed with regard
to goods already traded or likely to be traded. The definition of “premises” and
the phrase “intended to take place” further reinforce that the procedure prescribed
under the Cr.P.C. must be followed even with respect to goods stored in
warehouses or godowns, irrespective of whether open or closed.
15. Chapter VII of the Criminal Procedure Code deals with summons and
searches. Part A concerns summon to produce, Part B relates to search warrants,
Part C lays down general provisions applicable to searches, and Part D contains
13
miscellaneous matters. Section 93 Cr.P.C. empowers a Court to issue a search
warrant in three circumstances: (i)where the Court has reason to believe that a
person to whom a summons or order under Section 91 Cr.P.C. has been or might
be issued, or to whom a requisition under Section 92 has been or might be
addressed, would not comply with such summons, order, or requisition; (ii)where
the thing for which search is to be made is not known to the Court to be in the
possession of any person; and (iii)where a general search or inspection is
considered necessary by the Court. A warrant may specify the particular place or
part of a place to be searched or inspected, and only such place as is mentioned
in the warrant can be entered. Section 93(1)(c) read with sub-section (2) uses the
expression “search or inspect”, thereby signifying that a warrant is mandatory for
both search and inspection, and that the Court must record reasons to believe the
necessity of issuing such warrant. Sections 94 and 95, in turn, deal with warrants
in respect of stolen property, objectionable articles, and forfeited publications.
15.1. Part C commencing with Section 99 provides that the provisions in
Sections 38, 70, 72,74, 77, 78 and 79, shall, as far as may be, apply to search
warrants issued under Sections 93, 94, 95 and 97. These provisions relate to aid
in execution of warrants of arrest, issuance, purpose, endorsement, authorization,
and execution both within and outside India. Section 100(1) prescribes that where
a place required to be searched or inspected is closed, the person in charge, upon
production of the warrant, must allow ingress and afford all facilities for the
search. Section 100(2) states that, in case of non-cooperation, the procedure under
14
Section 47(2) (relating to authority to break open the premises) shall be followed.
Section 100(4) mandates that, before making a search under this Chapter, the
person conducting the search shall call upon two or more independent and
respectable inhabitants of the locality (or other localities, if necessary) to witness
the search. If they refuse, they may be compelled, and if they still fail or refuse,
they are liable to prosecution under Section 187 IPC. Section 100(5) further
requires that persons witnessing the search and seizure must sign the mahazar,
and a copy of such mahazar shall be delivered to the occupant.
15.2. Part D begins with Section 102, which deals with seizure by a police officer
of goods alleged or suspected to be stolen, or goods found under circumstances
creating suspicion of commission of an offence. Section 102(3) requires that such
seizure be immediately reported to the Magistrate having jurisdiction. If the
seized goods cannot be transported to Court, or where there is difficulty in
securing proper accommodation for custody, or where they are no longer
necessary for investigation, they may be handed over to a person upon such
person executing a bond to produce them before the Court as and when required
or under further orders. It is pertinent to note here that goods seized under Section
102 refers to goods recovered or seized during a causal recovery or general
search, such as stolen goods or goods found accidentally, which the officer
believes to be involved in some offence. It does not include goods seized under
Sections 100(4) and 100(5) pursuant to a search or inspection conducted under
Section 93 Cr.P.C. Section 102 thus addresses a distinct situation of seizure
15
during a general search, not during a search or inspection under Section 15 of the
2009 Act. A plain reading of Section 15 of the 2009 Act, along with Sections 93
and 100 (4) - (5) Cr.P.C leads to the irresistible conclusion that, in the absence of
a search, there cannot be any seizure.
16. The respondents have consistently pleaded before both the writ Court and
the Appellate Court that the search and seizure were carried out in accordance
with Section 15 of the 2009 Act. Their present attempt to contend that there was
no search but merely an inspection cannot aid their case, since the pre-requisites
under both Section 15 of the 2009 Act as well as Section 93 Cr.P.C must be
satisfied in either event. The expression ‘closed premises’ denotes premises,
where access is locked or otherwise unavailable to the public except with the
permission of the occupant, and cannot be construed narrowly to exclude open-
air premises, if such access is not generally available to unauthorised persons. A
distinction must be drawn between premises where the public has access for a
limited purpose and premises that are truly public. In the case of a warehouse or
godown, access is granted only to those who have some business connection with
the owner. Even in trading premises, entry is subject to restrictions. Therefore,
merely because a place is open at the time of visit does not mean that the
requirements under Section 15 of the 2009 Act or the Cr.P.C. can be bypassed.
Any officer intending to conduct a search or inspection and effect a seizure must
necessarily follow the prescribed procedure and cannot forcibly enter premises
without warrant or reasons duly recorded. These safeguards, embodied both in
16
the special enactment and the Cr.P.C., are designed to prevent arbitrary action and
to uphold the guarantee of due process.
17. Section 165 Cr.P.C. deals with circumstances and pre-requisites for
searches without warrant. As a general rule, every search must be preceded by a
warrant and reasons to believe must be recorded. Section 165 applies where, due
to exigent circumstances, it is not possible to obtain a search warrant. In such
cases, the officer may, after recording his reasons in writing and specifying, as far
as possible, the thing for which the search is to be made, conduct or cause a search
of the place. Section 165(4) provides that the general provisions relating to
searches contained in Section 100 also apply to searches under Section 165. It is
therefore clear that even under Section 165, the existence of reasons to believe
that an imminent search is necessary, must be recorded, with as much detail as
possible. The mandate of Section 100(4) must also be satisfied even in searches
under Section 165.
18. It must also be recalled that Section 15(4) of the 2009 Act requires
compliance with the provisions of the Cr.P.C. relating to search or seizure when
such actions are taken under the Act. Section 51 of the 2009 Act, expressly lays
down that Section 153 Cr.P.C dealing with preventive action of the police, or the
provisions of the IPC as they then stood, are not applicable to matters under the
Legal Metrology Act. Therefore, the reference in Section 15(4) of the 2009 Act
to the provisions of the Cr.P.C. cannot be read to mean that Section 165 Cr.P.C
can be invoked only if an offence has already been registered. Section 165 itself,
17
under sub-section (4), makes other provisions of the Code applicable, leaving no
room for ambiguity. Moreover, Section 165 speaks of searches during an
investigation; it comes into operation once an investigation commences.
18.1. At this juncture, it will be useful to refer to the judgement of this Court in
6
the State of Madhya Pradesh v. Mubarak Ali , wherein the High Court had held
that the investigation was initiated by the Inspector even before obtaining the
mandatory prior permission, which was sought only after a lapse of ten days. This
Court upheld the finding of the High Court and categorically held that the
requirement of prior permission is a condition precedent for a valid investigation
and not a mere procedural formality that can be cured retrospectively. Since the
defect went to the root of jurisdiction, the belated sanction could not validate the
investigation, and the appeal preferred by the State was accordingly dismissed.
While so, the Court elucidated the scope of the term “investigation” in the
following terms:
“12. In this view no other question arises for consideration. But as the learned
Counsel appearing for the State contended that the observations of the learned
Judge of the High Court that permission of the Magistrate was obtained ten days
after the investigation was started was wrong, it would be as well that we
considered the argument briefly. Section 4(1) of the Code of Criminal Procedure
defines "investigation" as to include all the proceedings under that Code for the
collection of evidence conducted by the police officer or other persons other than
a Magistrate who is authorised by the Magistrate in this behalf. Chapter XIV of
the Code prescribes the procedure for investigation. Investigation starts after the
police officer receives information in regard to an offence. Under the Code
"investigation consists generally of the following steps : (i) proceeding to the spot;
(ii) ascertainment of the facts and circumstances of the case; (iii) discovery and
arrest of the suspected offender; (iv) collection of evidence relating to the
6
MANU/SC/0038/1959 : AIR 1959 SC 707
18
commission of the offence which may consist of (a) the examination of various
persons (including the accused) and the reduction of their statements into writing,
if the officer thinks fit, (b) the search of places of seizure of things considered
necessary for the investigation and to be produced at the trial; and (v) formation
of the opinion as to whether on the material collected there is a case to place the
accused before a Magistrate for trial and if so taking the necessary steps for the
same by the filing of a charge-sheet under s. 173.” - See H. N. Rishbud and Inder
Singh v. The State of Delhi MANU/SC/0049/1954 : 1955CriLJ526 …..”
19. As seen above, Section 15 of the 2009 Act and Section 93 Cr.P.C speak about
search and inspection. Both provisions treat “search” and “inspection” as distinct
actions. Inspection refers to the verification of the books, records, or documents
at the premises of a person, which is generally permissible under the respective
law upon compliance with the prerequisites of authorization, recording of reasons
to believe, and permission from the competent authority under law. It is made to
verify compliance with the statute. A search, on the other hand, has a wider
connotation. It implies the power to look in any place for any materials, goods,
books, or documents believed to be secreted or concealed, which may evidence a
violation and may be liable to seizure or confiscation. Further, to conduct either
a search or an inspection, not only is a warrant ordinarily necessary, but there
must also be reasons to believe that such a search is required.
19.1. Seizure refers to the act of taking the material object into custody for the
purpose of investigation or enquiry. Detention refers to a situation where the
owner, though retaining possession of the goods, is restrained from using them.
There is also a subtle difference where a search followed by seizure is effected
under a special enactment, which contemplates a sequence of mandatory steps.
19
Such proceedings are initiated not merely to charge a person with a violation but
also to prevent further violations, as in the present case.
19.2. In every search conducted under a special enactment without a warrant, the
requirement of recording reasons to believe is mandatory. The reasons
necessitating the search must be relevant and must reflect application of mind
based on some information – either from a third party or personal knowledge –
and cannot be based on mere presumption or extraneous considerations. Such
reasons cannot rest on mere suspicion or subjective satisfaction; something more
substantial is required for a prudent person to conclude that a search and/or
seizure is necessary.
19.3. Similarly, there must be application of mind before seizing goods,
materials, or documents during a search. A rational nexus must exist between the
articles seized and the contemplated violation under the applicable provisions.
The authority effecting the seizure must record reasons for such seizure, and those
reasons must demonstrate due application of mind to the materials available.
[ See: State of Madhya Pradesh v. Mubarak Ali (supra) and Radhika Agarwal
7
v. Union of India .]
19.4. Further, this Court in Narayanappa and others v. Commissioner of
8
Income Tax, Bangalore while considering the expression “reason to believe”,
held as follows:
7
2025 LiveLaw SC 255
8
MANU/SC/0124/1966: AIR 1967 SC 623
20
“4. The belief must be held in good faith: it cannot be merely a pretence. To put it
differently it is open to the Court to examine the question whether the reasons for
the belief have a rational connection or a relevant bearing to the formation of the
belief and are not extraneous or irrelevant to the purpose of the section. To this
limited extent, the action of the Income-tax Officer in starting proceedings under
s. 34 of the Act is open to challenge in a court of law.”
19.5. It is also pertinent to mention here that various special enactments, such as
the Legal Metrology Act, 2009, the Income Tax Act, 1961, the Customs Act,
1962, the Central Excise Act, 1944, the Finance Act, 1994, the Goods and Service
Tax Act, 2017, the Narcotic Drugs and Psychotropic Substances Act, 1985, as
well as several repealed indirect Tax Laws of different States, contain provisions
relating to search and seizure. The above list is illustrative and not exhaustive, as
there are many other enactments with similar provisions. In all such enactments,
the object of search and seizure is, more often than not, to collect evidence
relating to an ongoing investigation of an offence or violation, and in some cases,
to prevent a violation. Further, in all these enactments, the procedure prescribed
under the Cr.P.C, insofar as it is applicable to search and seizure, is to be followed.
It is also settled law that unless the provisions of the Cr.P.C. are explicitly
excluded, the same shall apply to special enactments as well. [ See: Ashok
Munilal Jain and another v. the Assistant Director, Directorate of
9
Enforcement , and Radhika Agarwal v. Union of India (supra) ]. Therefore, the
ratio laid down by this Court in the various judgments could not have been
ignored by the Division Bench of the High Court.
9
2018 (16) SCC 158
21
20. In the present case, the respondent authorities conducted a search and
inspection on 02.07.2020 during business hours at a commercial warehouse
belonging to the appellant and seized 7,600 pre-packed wholesale packages of
exercise books, for alleged violations of Rule 24(a) of the 2011 Rules and Section
36(1) of the 2009 Act. The search was conducted without a warrant, and no
reasons were admittedly recorded either for conducting the search or inspection,
or for seizure of goods. Therefore, the search and seizure are clearly vitiated by
procedural violations.
20.1. Observance of due process of law and the principles of natural justice being
intertwined, is a legal necessity to ensure that the action of the authorities does
not result in manifest arbitrariness or abuse and misuse of power by those
empowered to conduct inspection, search, and/or seizure. When the law
prescribes a particular procedure to be followed while taking action, the same
must be strictly adhered to. The Constitutional Bench of this Court in State of
10
Punjab v. Baldev Singh and others , categorically held that it is an imperative
requirement that an empowered officer intending to search a person for
possession of articles covered by the NDPS Act, must inform such person that he
has a right to be searched, if he so chooses, before a Gazetted Officer or a
Magistrate. This safeguard was recognised as a substantive right conferred on the
accused, designed to ensure fairness and transparency, and therefore, required to
10
MANU/SC/0981/1999: AIR 1999 SC 2378
22
be followed scrupulously. The Court further held that the obligation is to inform
the accused of his right, though not necessarily in writing, and any failure to
comply with this mandate would vitiate the search as being illegal and contrary
to law. While considering procedural violations, the Bench cautioned as under:
“57. On the basis of the reasoning and discussion above, the following
conclusions arise:
…
(4) That there is indeed need to protect society from criminals. The societal intent
in safety will suffer if persons who commit crimes are let off because the evidence
against them is to be treated as if it does not exist. The answer, therefore, is that
the investigating agency must follow the procedure as envisaged by the statute
scrupulously and the failure to do so must be viewed by the higher authorities
seriously inviting action against the concerned official so that the laxity on the
part of the investigating authority is curbed. In every case the end result is
important but the means to achieve it must remain above board. The remedy
cannot be worse than the disease itself. The legitimacy of judicial process may
come under cloud if the court is seen to condone acts of lawlessness conducted by
the investigating agency during search operations and may also undermine
respect for law and may have the effect of unconscionably compromising the
administration of justice. That cannot be permitted. An accused is entitled to a
fair trial. A conviction resulting from an unfair trial is contrary to our concept of
justice. The use of evidence collected in breach of the safeguards provided by
Section 50 at the trial, would render the trial unfair.
…”
11
20.2. In State of Rajasthan v. Rehman , the question that arose for
consideration was whether the provisions of Section 165 Cr.P.C could be invoked
in respect of a search conducted by an Excise Officer under the Central Excise
and Salt Act, 1944. The search in that case had been effected without recording
reasons as mandated under Section 165 Cr.P.C. The Court observed that Section
18 of the Act expressly stipulated that searches under the Act shall be carried out
11
MANU/SC/0181/1959 : AIR 1960 SC 210
23
in accordance with the provisions of the Cr.P.C. Consequently, it was held that
Section 165 Cr.P.C was squarely attracted and that the search, having been
conducted in violation of the said requirement, was illegal. The following
paragraphs are apposite:
“7. Now we shall look at the provisions of the Criminal Procedure Code to
ascertain which of its provisions regulating the mode of search are appropriate to
the power conferred on the Deputy Superintendent under r. 201 of the Rules. In
the Criminal Procedure Code there are four groups of sections regulating the
searches authorised under it. Sections 47, 48, 51 and 52 appear in Ch. V of the
Code which provides for the arrest, escape and retaking of persons. Section
47 provides for the search of a place entered by persons sought to be arrested; s.
48 for procedure where ingress is not obtainable; and Sections 51 and 52 for the
search of the arrested persons. The second group consists of Sections 100, 101,
102 and 103 of Ch. VII of the Code. Section 100 deals with the search for persons
wrongfully confined, and the other sections are general provisions relating to
search warrants, duties of persons in charge of closed places and the
requisitioning of persons to witness searches. Section 153 forms the third group
and it falls under Ch. XIII of the Code which provides for the preventive action of
the police. Under s. 153, a police officer can make a search without a warrant for
the purpose of inspecting or searching for any weights or measures or instruments
for weighing used or kept within the limits of his station, if he has reason to believe
that the weights etc. are false. The fourth group of sections appear in Ch. XIV
which provides for searches by a police officer during the investigation of a
cognizable offence. The power of search given under this chapter is incidental to
the conduct of investigation the police officer is authorized by law to make. Under
s. 165 four conditions are imposed : (i) the police officer must have reasonable
ground for believing that anything necessary for the purposes of an investigation
of an offence cannot, in his opinion, be obtained otherwise than by making a
search, without undue delay; (ii) he should record in writing the grounds of his
belief and specify in such writing as far as possible the things for which the search
is to be made; (ii) he must conduct the search, if practicable, in person; and (iv)
if it is not practicable to make the search himself, he must record in writing the
reasons for not himself making the search and shall authorize a subordinate
officer to make the search after specifying in writing the place to be searched,
and, so far as possible, the thing for which search is to be made. As search is a
process exceedingly arbitrary in character, stringent statutory conditions are
imposed on the exercise of the power. A comparative study of the aforesaid
provisions with the provisions of r. 201 of the Rules indicates that searches made
by a police officer during the course of an investigation of a cognizable offence
24
can properly be approximated with the searches to be made by the authorized
officer under r. 201 of the rules; for, in the former case, the police officer makes a
search during the investigation of a cognizable office and in the latter the
authorized officer makes the search to ascertain whether a person contravened
the provisions of the Act or the Rules which is an offence. There is also no reason
why conditions should be imposed in the matter of a search by the police officer
under s. 165 of the code, but no such safe-guard need be provided in the case of a
search by the excises under the Rules. We think that the legislature, by stating in
s. 18 of the Act that the searches under the Act and the Rules shall be carried out
in accordance with the provisions of the Code relating to searches, clearly
indicated that the appropriate provisions of the Code shall govern searches
authorized under the Act and the Rules. We therefore hold that the provisions of s.
165 of the Code must be followed in the matter of searches under s. 201 of the
Rules.
8. There are no merits in the second contention either. The recording of reasons
does not confer on the officer jurisdiction to make a search, though it is a
necessary condition for making a search. The jurisdiction or the power to make a
search is conferred by the statute and not derived from the record of reason. That
apart, s. 18 of the Act in express terms states that searches shall be carried out in
accordance with the provisions of the Code of Criminal Procedure. Section 165 of
the Code lays down various steps to be followed in making a search. The recording
of reasons is an importing step in the matter of search and to ignore it is to ignore
the material part of the provisions governing searches. If that can be ignored, it
cannot be said that the search is carried out in accordance with the provisions of
the Code of Criminal Procedure: it would be a search made in contravention of
the provisions of the Code.
9. For the reasons mentioned, we hold that the search made by the Deputy
Superintendent in the present case in contravention of the provisions of s. 165 of
the Code was illegal.”
12
20.3. This Court in Ravinder Kumar v. State of Haryana , held that the very
action of search stood vitiated and, accordingly, allowed the appeal preferred by
the appellant by quashing the complaint and FIR registered against him. In that
case, the search had been conducted in violation of the mandatory safeguards
prescribed under Section 30(1) of the Pre-Conception and Pre-natal Diagnostic
12
MANU/SC/1006/2024 : AIR 2024 SC 4311
25
Techniques (Prohibition of Sex Selection) Act, 1994. It was observed that, apart
from what was discovered during the illegal search and the documents seized in
consequence thereof, there was no material whatsoever connecting the accused
to the offence punishable under Section 23 of the 1994 Act. Since the search itself
was wholly illegal, continuation of prosecution founded solely on such an
unlawful search was held to be an abuse of the process of law. The relevant
paragraphs read as under:
“12. The question is what meaning can be assigned to the expression "has reason
to believe". Section 26 of the Indian Penal Code defines the expression "reason to
believe", which reads thus:
26. "Reason to believe".- A person is said to have "reason to believe" a
thing, if he has sufficient cause to believe that thing but not otherwise.
In the case of Aslam Mohammad Merchant v. Competent Authority and Ors.
MANU/SC/2959/2008 : 2008:INSC:782 : (2008) 14 SCC 186, this Court had an
occasion to interpret the same expression. In paragraph 41, this Court held thus:
41. It is now a trite law that whenever a statute provides for "reason to
believe", either the reasons should appear on the face of the notice or they
must be available on the materials which had been placed before him.
However, interpretation of the expression will depend on the context in which it is
used in a particular legislation. In some statutes like the present one, there is a
power to initiate action under the statute if the authority has reason to believe that
certain facts exist. The test is whether a reasonable man, under the circumstances
placed before him, would be propelled to take action under the statute.
Considering the object of the 1994 Act, the expression "reason to believe" cannot
be construed in a manner which would create a procedural roadblock. The reason
is that once there is any material placed before the Appropriate Authority based
on which action of search is required to be undertaken, if the action is delayed,
the very object of passing orders of search would be frustrated. Therefore, what
is needed is that the complaint or other material received by the appropriate
authority or its members should be immediately made available to all its members.
After examining the same, the Appropriate authority must expeditiously decide
whether there is a reason to believe that an offence under the 1994 Act has been
or is being committed. The Appropriate Authority is not required to record reasons
for concluding that it has reason to believe that an offence under the 1994 Act has
26
been or is being committed. But, there has to be a rational basis to form that belief.
However, the decision to take action Under Sub-section (1) of Section 30 must be
of the Appropriate Authority and not of its individual members.
14. Therefore, in the facts of the case, no legal decision was made by the
Appropriate Authority in terms of Sub-section (1) of Section 30 to search for the
Appellant's clinic. As stated earlier, Sub-section (1) of Section 30 provides a
safeguard by laying down that only if the Appropriate Authority has reason to
believe that an offence under the 1994 Act has been committed or is being
committed that a search can be authorized. In this case, there is no decision of the
Appropriate Authority, and the decision to carry out the search is an individual
decision of the Civil Surgeon, who was the Chairman of the concerned
Appropriate Authority. Therefore, the action of search is itself vitiated.
16. A perusal of the impugned FIR and impugned complaint shows that its
foundation is the material seized during the raid on 27th April 2017. Except for
what was found in the search and the seized documents, there is nothing to connect
the Accused with the offence punishable Under Section 23 of the 1994 Act. As the
search itself is entirely illegal, continuing prosecution based on such an illegal
search will amount to abuse of the process of law. The High Court ought to have
noticed the illegality we have pointed out.”
21. We have already held that Sections 100(4) and 100(5) Cr.P.C are
applicable to the present case. Accordingly, the presence of two respectable
independent witnesses from the locality was mandatory. It is significant to note
that such witnesses may also be drawn from a different locality, provided they
meet the requirements of independence and respectability. In the present case,
however, the driver of the Assistant Controller – being a party to the inspection –
acted as a witness, which is in violation of law. Although the respondents claimed
that no one from the locality was forthcoming, there is nothing on record to
indicate who was approached, when such request was made, whether a written
request was given, and what further action was taken. The seizure mahazar also
27
fails to support the respondents’ case, as it records none of the claims now relied
upon in their defence. It is settled law that where the initial proceedings are
vitiated, all subsequent proceedings are unsustainable. Any act in violation of law
cannot be brushed aside on the ground that no prejudice was caused; every
violation of law is deemed to cause some prejudice.
22 . Further, there is nothing on record to suggest that the goods in the container
differed from the particulars on the label, either in form, quality, or weight. The
seizure mahazar only noted that the packages lacked clear and conspicuous
declarations as required under Rule 24(a), which mandates that declarations on
wholesale packages be printed and not affixed by way of a label. It is not disputed
by the respondents that disclosures were made; their contention is merely that
they were affixed as labels rather than printed. The appellant contended that the
goods were stored in CFCs for transportation and that a label declaring the
particulars required under law was duly affixed. The alleged violation was
therefore, at best, technical. This contention is fortified by the judgment of this
13
Court in State of Maharashtra and others v. Raj Marketing and another , and
the accompanying clarification notification which explicitly stated that there was
no bar on affixing labels on wholesale packages. FAQs 17 and 19 further clarify
that storage in containers for transportation does not constitute wholesale
packaging.
13
(2011) 15 SCC 525
28
23. In view of the foregoing, the entire proceedings from search to seizure are
illegal and unsustainable, as neither a warrant was obtained nor reasons recorded
for search, inspection, or seizure. The mandatory safeguards under Section 15 of
the 2009 Act, and Sections 165, 100(4) and 100(5) Cr.P.C were disregarded. The
2009 Act itself contemplates action against officials violating its provisions under
Sections 42 and 43. Compliance with statutory procedures, including recording
“reasons to believe” before initiating search or seizure, is incumbent upon
officials; non-compliance renders the action futile and results in arbitrary excise
of authority. In the present case, the respondents not only violated Section 15 of
the 2009 Act, but also failed to comply with Sections 100(4) and 165 Cr.P.C.
Further, there is nothing on record to show that the search was so imminent as to
justify dispensing with a warrant. On the same day as the inspection, search, and
seizure, a notice under Section 48 of the 2009 Act was issued, specifying a
compounding fee for contraventions of Sections 29, 36(1), and 36(2) of the Act,
and Rules 18(2) and 27 of the 2011 Rules, and directing the appellant to respond
within 15 days, failing which further legal action would follow. The Single Judge
of the High Court correctly set aside these notices, but the Division Bench
erroneously reversed the order. Therefore, the notices/orders issued by the
respondents, as well as the judgment and order of the Division Bench of the High
Court deserve to be quashed and are quashed. As a consequence, the order of the
Single Judge stands restored.
29
24. Accordingly, the appeal arising out of the judgment in WA No. 572 of 2020
is allowed. Since the writ appeal judgment has been set aside, no further orders
are necessary in the appeal filed against dismissal of the Review Petition, which
is disposed of. There shall be no order as to costs.
25. Connected Miscellaneous Application(s), if any, stand disposed of.
…..…………………J.
[J.B. PARDIWALA]
………………….…J.
[R. MAHADEVAN]
NEW DELHI;
SEPTEMBER 12, 2025.