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Search - Section 165 Cr.PC not mandatory. - The general principles laid down re- garding the irregularities committed in searches, equally apply even to cases where the grounds of belief as required under Section 165 are not recorded. In Bai Radha v. State of Gujarat, while considering the scope of Section 15 of the Suppression of Immoral Traffic Act, whereunder the authorised officer had to record the grounds of his belief, on the effect of fail- ure to do so, this Court observed thus: "The principles which have been settled with regard to the effect of an irregular search made in exercise of the powers under Section 165 of the Code of Criminal Procedure would be fully applicable even to a case under the Act where the search has not been made in strict compliance with its provisions. It is significant that there is no provision in the Act according to which any search carried out in contravention of Section 15 would render the trial illegal. In the absence of such a provision we must apply the law which has been laid down with regard to searches made under the provisions of the Criminal Procedure Code." While concluding on the legal effect with regard to an irregular search under Section 165 of the Code, it was observed thus: "In conclusion it may be observed that the investigating agencies cannot and ought not to show complete disregard of such provisions as are contained in sub-Sections (1) and (2) of Section 15 of the Act. The legislature in its wisdom provided special safeguards owing to the nature of the premises which have to be searched involving inroads on the privacy of citizens and handling of delicate situations in respect of females. But the entire proceedings and the trial do not become illegal and vitiated owing to the non- observance of or non-compliance with the direction contained in the aforesaid provisions. The court, however, has to be very careful and circumspect in weighing the evidence where there has been such a failure on the part of the investigating agency but unless until some prejudice is shown to have been caused to the accused person or persons the conviction and the sentence cannot be set aside." The observations made in the above case have been relied upon by this Court in Shyam Lal Sharma v. State of Madhya Pradesh. No doubt in K.L. Subhayya's case failure to record the grounds of belief as required under Section 54 of the Mysore Excise Act amounted to an ille- gality vitiating the trial. But there it must be noted that Section 54 itself gives a mandate that such grounds of belief should be recorded. But under the NDPS Act, Sections 41 and 42( 1) do not give any such mandate. It is only proviso to Section 42( 1) which makes the recording of grounds obligatory. In R. S. Seth Gopikisan Agarwal v. R.N. Seth, Assistant Collector of Customs and Central Excise, a question arose whether the custom officer while acting under Section 105 of the Customs Act and making a search as provided under Section 165(1) should record reasons. This argument was based upon Section 105(2) which lays down that the provisions of the Cr.PC relating to search so far as may be applied to search under this Section. Considering this submission it was held thus: "The argument is that the expression "so far as may be" in Section 105(2) of the Act at- tracts Section 165( 1) of the Code of Criminal Procedure and under that section, as the police officer has to record in writing the grounds of his belief the Assistant Collector of customs shall also in authorizing the search record his reasons for doing so. But, in our view, Section 105 of the Act and Section 165(1) of the Code of Criminal Procedure are intended to meet totally different situations. Whiel under Section 105 of the Act the As- sistant Collector of Customs either makes the search personally or authorises any officer of Customs to do so, if he has reason to believe the facts mentioned therein, under section 165( 1) of the Code of Criminal Procedure the recording of the reasons for be- lieving the facts is only to enable him to make a search urgently in a case where search warrants in the ordinary courose be obtained. It is, therefore, not possible to invoke that condition and apply it to a situation arising under Section 105 of the Act." It therefore emerges that the empowered officer while effecting the search or arrest without warrant as provided under Sections 41 and 42( 1) has to carry out search in accordance with Section 165 Cr.PC, but if he fails to record reasons, such a failure will not amount to an ille- gality vitiating the trial. The effect ofJ3Uch a failure has to be kept in view in appreciating the evidence as held in Bai Radha's case. Section 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions also are there in the Cr.PC. Ifthere is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory. It will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two Sections contain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any a these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such noncompliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the Officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non- compliance or failure to strictly comply by itself will not vitiate the prosecution.