A. D. Koshal, J. - (1.) -In this appeal by Special Leave the appellant has been convicted under S. 34 of the Mysore Excise Act and sentenced to three months' rigorous imprisonment and a fine of Rs. 100 for being in possession of 48 bottles of liquor which were recovered from a car which was being driven by the appellant. Mr. Javali appearing for the appellant has raised a short point before us. He has submitted that the Inspector of Excise who searched the car along with the panches had no jurisdiction to do so because he did so without complying with the provisions of S. 54 of the Excise Act. In our opinion, the contention is well founded and must prevail. S. 53 runs thus:"If a Magistrate, upon information and after such inquiry (if any) as he thinks necessary, has reasons to believe that an offence under S. 32, S. 33, S. 34, S. 36 or S. 37 has been, is being or is likely to be committed, he may issue a warrant- (a) for the search of any place in which he has reason to believe, that any intoxicant still, utensil, implement, apparatus or materials which are used for the commission of such offence or in respect of which such offence has been, is being, or is likely to be, committed, are kept or concealed, and (b) for the arrest of any person whom he has reason to believe to have been, to be, or to be likely to be engaged in the commission of any such offence."
(2.) Thus this section relates to a contingency where the Statute enjoins that any inspector before searching a place must obtain a warrant from the Magistrate. S. 54 is a special provision which arises in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate. Section 54 runs thus: "Whenever the Excise Commissioner or a Deputy Commissioner or any police officer not below the rank of an officer in charge of a police station or any Excise Officer not below such rank as may be prescribed has reason to believe that an offence under S. 32, S. 33, S. 34, S. 36, or S. 37 has been, is being, or is likely to be committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief- (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and (b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid."
(3.) In the instant case, it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of S. 54 were not at all complied with.;