Y. S. MEENA, J. - (1.) THIS revision petition is directed against the judgement of Additional Sessions Judge Sri Ganganagar dated 4-7-1981. Learned Additional Sessions Judge has convicted the accused petitioners Mool Chand and Gurbachan Singh under Section 54-A of the Rajasthan Excise Act and sentenced each of them to undergo one year's rigorous imprisonment and fine of Rs. 2000/-in default they should further go imprisonment for six months.
(2.) THE prosecution case is that one Ramsaran Das who is also a wine contractor received some information that State Country Liquor to be brought in the area of his contract. Thus he went to Excise Inspector and gave that information to him. Excise Inspector Shri Rajeshwar Dayal thereupon arranged a raid and laid an ambush on the Ganganagar-Banwali Road at 1 a. m. on 26-6-1978. That, one car came from Banwali side and when the car came near them, they gave light of Jeep and thereupon the car stopped. From the car Mool Chand ran away and could not be arrested on spot. THEy searched the car and found three bags lying on the back seat of the car which contained 65 bottles of liquor. In the diki of the car there were four bags containing 100 bottles of liquor. Thus, total bottles of liquor found were 165 Car Driver Gurbachan Singh was arrested. Seven samples were taken from seven bags. Samples were sent for chemical examination. A case was registered under section 54-A of the Rajasthan Excise Act. Both accused Moolchand and Gur Bachan Singh were challaned and charge sheeted. THE accused petitioners denied having committed any offence. THE cause was tried by Munsif & Judicial Magistrate, Ganganagar and after examining the prosecution witness, he convicted both the accused petitioners and sentenced each of them to undergo two year's rigorous imprisonment and pay fine of Rs. 2000/-, in default to further undergo six months rigorous imprisonment. Accused petitioners carried the matter before Additional Sessions Judge, Sri Ganganagar. He also found that the offence was committed by these accused petitioners. He sustained the conviction. However, he reduced the sentence and sentenced each of them to undergo one year's rigorous imprisonment and pay fine of Rs. 2000/-, in default to further go six months' rigorous imprisonment. Being aggrieved accused petitioners are before Learned counsel for the accused petitioner Shri M. L. Garg has raised three point. His first argument is that when seven samples were taken from seven bottles the offence should be taken only for seven bottles, and not for 165 bottles. His next submission was that under section 47 of the Excise Act, the Inspector or the Excise Officer is duty bound to record reasons before searching any place but no reasons were recorded by Inspector nor any warrant was issued by the Magistrate for search therefore, whole trial is vitiated and no conviction can be based on the basis of that search. He relied on 1977 Supreme Court Cases, 367. He also submitted that for link evidence in respect of samples i. e. from time sample taking till its reaching to the Forensic Science Laboratory, the link evidence was not produced again on that basis also, the conviction was contrary to the provisions of law. For that he relied on the decision of Supreme Court in the case of Daulat Ram (1980 AIR Supreme Court 1314 ). On the other hand, Shri Hemant Chaudhary learned Public Prosecutor, submitted that these arguments were not taken before the Court below therefore, they should not be agitated at this level. After hearing the rival submissions and carefully perusal of record, in my view when learned counsel for the accused petitioners has not argued on the merits of the case, there is no need to discuss the witnesses and merits of the case. The three points which were raised by the learned counsel for the accused petitioners are dealt with as under. Instead of dealing with first and last point, I feel it proper to consider point No. 2 on which the main emphasis of learned counsel for the accused-petitioner is layed. Learned counsel for the accused-petitioners Mr. Garg has taken me to the provisions of section 47 of the Rajasthan Excise Act, 1950 which provides that whenever an officer of the Excise Department not below such rank as the State Government may prescribe has reason to believe that an offence punishable under this Act, has been, is being or is likely to be committed in any place 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, at any time, by day or night enter and search such place provided that such officer shall before entering such place record the grounds of his belief. In the case before us, admittedly, no reasons are recorded by the Inspector nor any material was found in support that Inspector has recorded the reasons before raid or search. In K. L. Subbaiya v. State of Karnataka (1) similar provision was considered by their Lordships of the Supreme Court and held that non compliance of the provisions of Section 54 of the Karnataka Excise Act, 1966, raid conducted by an officer without recording reasons for his belief that an offence under the Act was likely to be committed was illegal and without effect. Conviction passed on such illegal search was set aside.
(3.) LEARNED Public Prosecutor submits that provisions of section 47 of the Rajasthan Excise Act are directory mandatory. Further this question cannot raised before the lower authority. So cannot be raised at this stage. In my view, a question pure law can be considered in revision petitions leaving which cannot be taken before the Court below, specially, when no enquiry into the facts is necessary basis the issue or question of law. Secondly, the issue is squarely covered by the decision of their Lordships of the Supreme Court (supra) there is no reason why the decision of their Lordships should not be followed on the issue in question. Therefore, following the decision of their Lordships of the Supreme Court in case of K. L. Subbaiya v. State of Karnataka, (Supra) I hold that the search in this was illegal as it is in violation of provisions of section 47 of the Rajasthan Excise Act. When search itself was illegal, conviction cannot be based on the basis of such search. Considering the above said discussion, I set aside the conviction and sentence awarded to the accused-petitioner by the Courts below and acquit the accused-petitioner from charge levelled against him. The bail bonds and sureties shall stand discharged. ;