RAGHUBAR DAYAL, J. - (1.) BADARUDDIN was convicted of offences under Section 9(a), Opium Act, and under Section 60(a), U.P. Excise Act. The conviction was upheld on appeal. He has come up to this Court in revision.
(2.) THE facts found by the Court below are that on the search of his house at 7 P.M. on 24th July 1948, a seer of opium, three -quarter seer of Bhang, about half chantank of Ganja and about 3 1/2 bottle full of liquor were recovered by Shri R.S. Sharma, Deputy Superintendent of Police who conducted the search in the presence of Shri Usman Ali, Station Officer, Excise Inspector and a few other persons, who were not examined as witnesses.
(3.) THE conviction under Section 60(a), U.P. Excise Act is bad as under Section 70, U.P. Excise Act a Court cannot take cognisance of such an offence without the complaint or report of the Collector or an Excise Officer authorised by him in that behalf. This case was reported by the Station Officer and not by the Excise Officer, and therefore, the Magistrate could not have legally taken cognisance of the offence under Section 60(a), U.P. Excise Act. The conviction for an offence under Section 9(a), Opium Act is challenged on the ground that Shri R.S. Sharma, Deputy Superintendent of Police conducted the search without a warrant at 7 P.M. in contravention of the provisions of Section 14, Opium Act, which authorises a search to be made between sunrise and sunset by certain officers without a warrant. It is, therefore, clear that the Deputy Superintendent of Police was acting illegally, but that fact alone will not vitiate the conviction, once it is proved that illicit opium was found in possession of the applicant. This fact together with the fact that no local witness was summoned for witnessing the search, as was required under Section 103, Criminal Procedure Code, will make the Court cautions and critical of the evidence led about the recovery of articles. Both the facts together will not vitiate the trial as illegal.;