A.D.V. Reddy, J.
1. The revision and the appeal arise out of the orders of the II Additional Sessions Judge, Guntur, in Criminal Appeal No. 270 of 1968.
2. The accused are residents of Santhanuthalapad. A charge-sheet was filed against them in the court of the Additional District Munsif Magistrate, Ongole, by the Circle Inspector of Police for offences under Sections 147, 332 and 427 read with Section 149, Indian Penal Code, alleging that the accused, 13 in number, had formed themselves into an unlawful assembly on 20th August, 1967, at about 11-30 P.M. and assaulted P.W. 1, the Commercial Tax Officer, as well as his peon, P.W. 7, when they had come along with others of the department and had asked for inspection of the account books in the mill premises and had also caused damage to the jeep which was stationed outside. In support of their case, the prosecution had examined 16 witnesses.
3. The facts spoken to by them are briefly as follows: On 20th August, 1967, at about 10-30 P.M., P. W. 1, the Commercial Tax Officer, Ongole, accompanied by P.W. 2, the Deputy Commercial Tax Officer, P. W. 3, the Assistant Commercial Tax Officer, P.W. 4, the Special Assistant Commercial Tax Officer, P.W. 5, the Commercial Tax Inspector, P.W. 6, their clerk, P.Ws. 7 and 8, peons, left the Commercial Tax Office at Ongole in the departmental jeep APG 4782 driven by P.W. 9 to check lorries carrying goods on Ongole-Kurnool road. After checking a lorry at Pernimitta, they had come to Santhanuthalapad at 10-30 P.M. and on seeing an empty lorry APK 1831 coming, they stopped it and learnt from him that he had unloaded 37 bags of groundnut kernel in Jayalakshmi Bharat Oil Mill at Santhanuthalapad having brought it from Kandulur. P.W. 1 then took the original copy of the trip sheet in the lorry and all of them proceeded in the jeep to the mill to verify the stocks. The mill was then working with lights on and the gate was closed. They shouted from outside the gate to open it, but no one opened it. Thereupon P.W. 1 asked P.W. 3 to go inside and verify the bags of groundnut kernel and P.Ws. 1, 2 and 7 went to an adjacent mill to find out whether it was working. Finding that it was not working, they returned and all of them entered through the wicket gate of the mill. Accused 1, 5 and 7 were in the verandah of the mill and P.W. 1 asked A-5 to show the register to verify whether the stocks received were entered in the register. A-5 did not produce the register and when P.W. 1 questioned him again, A-5 raised a hue and cry saying that they had no right to enter the mill at that part of the night without obtaining the permission of the village munsif. Meanwhile, A-1 was questioning them regarding their entry into the mill and as P.W. 7, the peon asked him not to be boisterous and show some respect to the officers, A-1 slapped him on the cheek and abused him and P.W. 7 raised a cry saying that he was slapped and a heated talk followed, P.W. 1 saying that he would give a police report for the slapping of the peon and would come next day with the police aid and check the registers and stock; and as the situation was going explosive they began to leave the place. Then they found a number of persons entering the mill led by A-2 and A-3, four or five of them including A-2 and A-3 being armed with sticks. A-2 then abused P.W. 1 and instigated others to beat P.W. 1 and his staff. A-3 beat P.W. 1 giving a number of blows with the stick ; A-2 and A-4 caught hold of his hands and dragged him, fisted him, and tore his shirt and pant. P.W. 1 out of fear passed urine and stools also in his clothes. A-5 pushed down P.W. 2, and A-5 tried to beat him, but he escaped. P.W. 3 was beaten by A-7 with a stick when he tried to intervene. P.W. 4 was beaten by A-8 and pushed and fisted by A-9. A-10 twisted the hands of P.W. 5 and pushed him down. Some of those in the mill premises went out, and of them, A-1 2 pulled P.W. 9 out of the jeep and pushed him while A-13 beat him. A-7, A-8, A-11 and A-12 then broke the wind-screen and damaged it. P.W. 10, a resident of Santhanuthalapad having his house a furlong away from the mill, on hearing the galata and seeing people running towards the mill at about midnight, went towards the said mill along with his grandson, one Sadanandarao and on going into the mill, he found that the officers including P.W. 1 were being beaten. He intervened and stopped the disturbance and took P.W. 1, whose shirt was torn and slightly stained with blood, and the other staff to his house. Leaving them at his house, he went to the house of the village munsif and not finding him there and as he was returning he met him in the bazaar and when he told him of what had happened he was evasive and did not come. Then P. W. 1 drafted the report, exhibit P-l, at the house of P.W. 10 and sent it to the police station. P.W. 16, the Inspector of Police Station, received the report and sent it to Chimakurthi Police Station for registration and then went to Santhanuthalapad at about 9 A.M. the following day, i.e., 21st August, 1967, and there in the house of P.W. 10 found P.W.1 and others and also the jeep in front with the wind-screen glass completely broken. Then he seized the broken glass pieces as well as the clothes worn by P.W. 1. The injured were sent to the Government hospital at Ongole and P.W. 15, the doctor who examined them, found 14 injuries on P.W. 1, two on P.W. 2 and one each on P.Ws. 3, 4, 5, 8 and 9 and had issued the wound certificates exhibits P-5 to P-l2. The Circle Inspector found the accused absconding. After the completion of investigation, he filed the charge-sheet on 6th November, 1967.
4. The accused in their statements denied any knowledge of the offence and stated that the mill was closed that night and that there were no lights and no work was going on, that there are parties in the village, one led by A-3 and the other by P.W. 10 and this case has been foisted on them. According to A-3, he was at Kavali in the house of one Kodandarama Reddi from 19th August, 1967. Four witnesses were examined on behalf of the defence in proof of their case.
5. The Magistrate after enquiry found the accused guilty of the charges framed against them, convicted them of the said offences and sentenced them to undergo R.I. for four months each on each of the counts and directed the sentences to run concurrently.
6. On appeal, the Sessions Judge held that on a careful examination of the evidence adduced on behalf of the prosecution there can be no doubt that P.W. 1 and his staff had gone to the Jayalakshmi Bharat Oil Mill in order to check the stock, that the evidence of P.Ws. 1 to 13 is consistent that a galata took place there in which P.W. 1 and his staff had received injuries, but he held that P.W. 1 and his party had no right to enter the premises in the dead of night, that the provisions of Sections 165 and 103 of the Criminal Procedure Code with regard to a search had not been followed and, therefore, it is against the provisions of Section 28 of the Andhra Pradesh Sales Tax Act, that if the accused had refused entry and the demand for books by P.W. 1 and also forced P.W. 1 and his men out of the premises, they were within their rights, and if during the course of which they had caused certain injuries to the P.Ws., which were simple in nature, as they had acted in private defence, they are protected by the provisions of Section 97, Indian Penal Code and, therefore, they have not committed any offence. In that view, he acquitted them of the charges under Sections 147, 332, 352 and 149, Indian Penal Code.
7. With regard to the charge under Section 427, Indian Penal Code, against A-7, A-8, A-1 1 and A-12 for causing mischief or damage to the jeep APG 4782 that was stationed outside, he held that a case against A-7 and A-1 1 alone had been made out and while confirming the conviction against them under that section, reduced the sentence to a fine of Rs. 200 or in default to undergo R.I. for four months. Hence the revision by A-7 and A-11 against their conviction under Section 426, Indian Penal Code, and the appeal by the State against the acquittal of the accused.
8. The point to be determined in this case is whether the action of P.W. 1 and his staff P.Ws. 2 to 8 in entering the Jayalakshmi Bharat Oil Mill at Santhanuthalapad was unauthorised and whether the accused in assaulting and causing injuries to P.Ws. 1, 7 and others had acted in private defence. According to P.Ws. 1 to 9, who were all members of the staff of the commercial tax department, they had got into the jeep APG 4782 driven by P.W. 9 and started to check the lorries on the road carrying goods on Ongole-Kurnool road and they had reached Santhanuthalapad at about 11-30 P.M. and there on seeing an empty lorry coming, they questioned the driver and learnt from him that he had unloaded 37 bags of groundnut kernel in the Jayalakshmi Bharat Oil Mill and P.W. 1 even took the trip sheet and then all of them proceeded to the mill. They found it working with lights on and as the main gate was not opened, they entered the mill through the wicket gate and there P.W. 1 asked A-5 to show the entries in the register relating to the 37 bags of groundnut kernel unloaded and that A-5 was not willing and later followed the disturbance and the assault on P.W. 7 first and then on P.W. 1 and others. P.W. 1, who was the Commercial Tax Officer, received as many as 14 injuries on his person as shown by the evidence of the doctor P.W. 15 and the wound certificate, exhibit P-5. Though they are said to be simple, there were a number of contusions and abrasions, one of them being 3' and another 2' in length and the beating appears to have been indiscriminate. The evidence shows that he was assaulted with sticks and was dragged, that his shirt and pant also were torn, that he had passed urine and stools in his clothes. According to the evidence after P.W. 7 was slapped by A-1, P.W. 1 was preparing to leave as the situation was becoming explosive and it was then that he was attacked. P.W. 1 had demanded only for the production of the register to see whether the receipt of 37 bags of groundnut kernel had been entered. A-5 refused to produce the register and then started to abuse him, asking him whether he had come with the permission of the village munsif and the attack followed. Thereafter the jeep that was stationed outside was also damaged. Under these circumstances, it has to be seen whether the action of P.W. 1 and his staff was unauthorised and whether the accused had acted in private defence.
9. Section 28 of the Andhra Pradesh Sales Tax Act provides for the right to make a demand for the production of account, register and other documents and for entry, inspection, etc., of the staff of the sales tax department and it reads as follows :
28. Powers to order production of accounts and powers of entry, inspection, etc.-(1) Any officer not below the rank of an Assistant Commercial Tax Officer authorised by the State Government in this behalf may for the purposes of this Act, require any dealer to produce before him the accounts, registers and other documents and to furnish any other information relating to his business.
(2) All accounts, registers and other documents maintained by a dealer in the course of his business, the goods in his possession and his offices, shops, godowns, vessels or vehicles shall be open to inspection by such officer at any time during the business hours prescribed under the relevant law for the time being in force or where no such hours are prescribed, at all reasonable times.
(3) If any such officer has reason to suspect that any dealer is attempting to evade the payment of any tax or other amount due from him under this Act, he may, for reasons to be recorded in writing seize such accounts, registers or other documents of the dealer as he may consider necessary, and shall give the dealer a receipt for the same. The accounts, registers and documents so seized shall be retained by such officer only for so long as may be necessary for their examination and for any enquiry or proceedings under this Act:
Provided that such accounts, registers and documents shall not be retained for more than thirty days at a time except with the permission of the next higher authority.(4) For the purposes of Sub-section (2) or Sub-section (3), any such officer shall have power to enter and search at any time during business hours prescribed under the relevant law for the time being in force, or where no such hours are prescribed, at all reasonable times, any office, shop, godown, vessel, vehicle or any other place of business or any building or place where such officer has reason to believe that the dealer keeps or is, for the time being, keeping any goods, accounts, registers or other documents of his business :
Provided that no residential accommodation (not being a shop-cum-residence) shall be entered into and searched by such officer except on the authority of a search warrant issued by a Magistrate having jurisdiction over the area, and all searches under this sub-section shall, so far as may be, be made in accordance with the provisions of the Code of Criminal Procedure, 1898 (Central Act 5 of 1898), subject to the rules, if any, made in this behalf.(5) The power conferred by Sub-section (4) shall include the power to break open any box or receptacle in which any goods, accounts, registers or other documents of the dealer may be contained, or to break open the door of any premises where any such goods, accounts, registers or other documents may be kept :
Provided that the power to break' open the door shall be exercised only after the owner or any other person in occupation of the premises, if he is present therein, fails or refuses to open the door on being called upon to do so.(6) Any such officer shall have power to seize and confiscate any goods which are found in any office, shop, godown, vehicle, vessel or any other place of business or any building or place of the dealer, but not accounted for by the dealer in his accounts, registers and other documents maintained in the course of his business :
Provided that before taking action for the confiscation of goods under this sub-section, the officer shall give the person affected an opportunity of being heard and make an inquiry in the prescribed manner.Explanation.- It shall be open to the State Government to authorise different classes of officers for the purpose of taking action under Sub-sections (1), (2) and (3).
10. It is evident from the proviso to Sub-section (4) that only in the cases of residential accommodation, search warrants issued by a Magistrate are necessary and all searches under this sub-section should, so far as may be, be made in accordance with the provisions of the Code of Criminal Procedure. Therefore, the provisions of Section 103 or other provisions of the Criminal Procedure Code will not be attracted if the entry and search are made in a non-residential building. The decisions cited, viz., Thakur Tanti v. State A.I.R. 1964 Pat. 493, Mithukhan v. State A.I.R. 1969 Raj. 121 and Public Prosecutor v. Syed Rowther (1962) M.L.J. (Crl.) 407 relate to searches made in residential houses and they do not apply to the facts of this case, where the officers of the commercial tax department, P. W. 1 and others, had gone to the mill premises. What they had done was only to go to the verandah of the mill, count the bags that were found stacked there, asked A-5 to produce the register to find whether the receipt of these bags had been entered. Nothing more was done by them and when they found that the atmosphere was hostile to them and they were about to leave, they were attacked. Under these circumstances, even the other cases cited will not be applicable to the facts of this case. In Bhupalem Venkata Subbaiah, In re [1960] 11 S.T.C. 850, what the officers of the commercial tax department did was to seize the books from the person, who was hastily bundling them up on their arrival and was going towards his house, when they were attacked; it was held that Section 28(3) of the Andhra Pradesh General Sales Tax Act confined the power of seizure of an officer to accounts, registers or other documents referred to therein and it was for the prosecution to prove that the books in question were books, the officer was entitled to seize under Section 28(3), and as long as the prosecution did not prove that they were account books, the recovery of the books by force after pushing the officer will not constitute any offence. In Subba Rao In re A.I.R. 1960 A.P. 110 also, the situation was the same, i. e., snatching away the books from the hands of the Commercial Tax Inspector, and it was held that such an act was illegal and ultra vires of the powers and it has been pointed out in the same case that the Commercial Tax Inspector was entitled to ask for production of the account books from the dealer and if the account books were so produced, it would then be open to a Commercial Tax Inspector to inspect the accounts. That is what P. W. 1 and his colleagues in this case had tried to do. They have not tried to recover by force any book and they had only asked for it and when it was not produced they were about to leave. Therefore using of force, as resorted in this case, is not called for. As already stated, P.W. 1, a responsible officer had received a large number of injuries as he was beaten with sticks and also otherwise roughly treated. This they had no reason to do.
11. The lower appellate court had held that they had no right to visit the premises in the dead of night and as such the accused had acted in their right of self-defence. Section 28(2) of the A. P. Sales Tax Act provides that all accounts, registers and other documents maintained by a dealer in the course of his business, the goods in his possession and his offices, shops, godowns, vessels or vehicles shall be open to inspection by such officer at any time during the business hours prescribed under the law for the time being in force or where no such hours are prescribed, at all reasonable times. In this case, there is consistent evidence that 37 bags of groundnut kernel were unloaded in the premises of Jayalakshmi Bharat Oil Mill and when the lorry driver was returning, P. W. 1 and his colleagues had questioned him and immediately proceeded to the mill and found it working with lights on and, therefore, they went into the compound and were on the verandah counting the bags when P.W. 1 had also asked for the register. This was at about midnight. As the mill was working and doing normal business, it cannot be contended that they are not the business hours of the mill, whether they are so prescribed or not in any statute. In any case, it is not open to them to contend that it is not a reasonable time. If the mill could work and transact business in the dead of night, it should also be construed a reasonable time for making the inspection or calling for the registers by the officers of the commercial tax department. While the lower appellate court had considered the provisions of Section 97 of the Indian Penal Code, it had ignored the provision of Section 99, Indian Penal Code, under which there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may be not directly justifiable in law. There is no dispute in this case that P. W. 1 and his staff were acting under the colour of their office, as they all had together started in a jeep for purposes of surprise checks and inspection. It is obviously part of their duty to make the surprise visits also to detect evasions. It cannot be said that they were not acting in good faith as the consistent evidence is that they had learnt from the lorry driver that 37 bags of groundnut kernel had been unloaded in the Jayalakshmi Bharat Oil Mill and they had gone there to see whether the entry regarding these had been made. It is not the case of the accused even, that there was a reasonable cause for apprehension of death or grievous hurt to give them any right of private defence under these circumstances. P. W. 1 and his staff had counted the bags and had merely asked for the register to verify the entry and it was then that A-5 started abusing in a loud tone and A-1 had assaulted P. W. 7 and then the attack on P.W. 1 and others had also started. Under these circumstances, the accused can have no right of private defence in attacking P. W. 1 and others and causing injuries to them. By reason of the attack on P. Ws. 1, 7 and others, they had committed the offences under Section 332, Indian Penal Code.
12. As far as the offence of mischief under Section 426, Indian Penal Code, is concerned, there was no question of any private defence at all. The accused concerned in it had gone out of the mill and had damaged the jeep, for which there is consistent evidence.
13. However, the lower appellate court had not chosen to discuss the evidence with regard to the complicity of each of the accused in the various offences with which they were charged in the case. It had chosen merely to refer to the overt-acts of A-1, A-2, A-3 and A-4 and not the rest of the accused. How far the rest of the accused are liable individually for the overt-acts of each of them or constructively liable, if there was rioting, have not been considered.
14. The order of acquittal is, therefore, set aside and the case as against all the accused is remanded to the lower appellate court to consider the evidence as against each of the accused and dispose of the case according to law.