Dua, J. - (1.) THESE three criminal revisions (Criminal Revisions Nos. 68, 88 and 303 of 1963) have been bracketed together because they were stated by the counsel for the Petitioners to involve same question of law.
(2.) IN Criminal Revision No. 63 of 1963 the only point raised by the learned Counsel is that there is a violation of Section 165, Code of Criminal Procedure and this violation vitiates the trial. In order to appreciate the contention the broad facts may be stated. Rulia accused -Petitioner has been convicted by a Magistrate 1st Class, Rohtak under Section 61 of the Punjab Excise Act (No. 1 of 1914). On 31st March, 1962 Mani Ram, Assistant Sub -Inspector (P.W. 4) received some secret information in pursuance whereof he formed a raiding party by joining Kadara P. W. 1, Darya Lambardar P. W. 2 and Pirthi P. W. 3 ah of village Bohar, and failed the house of the accused in the same village and found him working on a still and manufacturing illicit liquor. The fire in the hearth was burning and the whole of apparatus was actually fixed and placed in working condition. The liquor after distillation from Exhibit P. 1 which contained lahan was being collected in a receiver P. 3 in watch about 12 oances(sic) of liquor was found. One bottle of liquor was also lying close to the working still. The lahan in Exhibit P. 1 weighed about 20 seers. The trial Court considering the prosecution witnesses to be respectable and independent found no reason to disbelieve their testimony. They were also supported by the Assistant Sub -Inspector. Finding the accused guilty he was convicted and ordered to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 700/ -, in default to undergo rigorous imprisonment for further period of three months. It is clear that before the learned Magistrate no point on the basis of alleged violation of the provisions of Section 165 Code of Criminal Procedure was raised.
(3.) AN appeal was taken to the Court of the learned Sessions Judge but in the grounds of appeal, a copy of which has been filed in this Court, again no point was sought to be made on the basis of violation of Section 165 of the Code but during arguments it appears that the very first point raised related to the alleged contravention of Section 165 of the Code. It was argued that the search was in contravention of this provision and, therefore, the entire proceedings were vitiated. In support of this contention reliance was placed on a Bench decision of the Lahore High Court in Emperor v. Mohammad Shah : A. I. R. 1946 Lah. 456. It was observed in that case by Marten J. that the safeguards incorporated in Section 165 are mandatory and not directory and must be carried out immediately and fully or as nearly as they can be in the exigencies and circumstances of each case. Unless this is done, the search, according to the learned Judge, would be without jurisdiction and bad in law. Bhandari J. who added a note of his own observed that having regard to the language of Section 165 and the general object intended to be secured by that section there was no doubt that it must be deemed to be obligatory with an implied nullification for disobedience. The learned Sessions Judge, however, distinguished the reported case observing that Section 165 is applicable only in those cases where during the investigation of a case some recovery is to be made from some house and that it does not apply to cases where on secret information a raid is conducted and the articles are recovered the possession of which is prohibited. The learned Sessions Judge continued that the recovery does not become illegal even if it be accepted that the search was not properly made.;