Y. R. MEENA, J. - (1.) THESE revision petitions are directed against the judgment of the learned Sessions Judge, Sri Ganganagar dated 6. 8. 1981, wherein, he sustained the conviction and reduced the sentence from one year's to nine months' R. I and a fine of Rs. 200/- each, in default of payment of fine to further undergo one month's R. I.
(2.) SINCE the facts of both the revision petitions are common, therefore, they are heard together and disposed of by this common order. The facts stated, in short, are that on 22. 7. 77, after receiving information from the Motbir, the Excise Party consisting of Dwarka Prasad Dixit, Excise Inspector, Dalpatsingh, Premsingh along with the force, did 'naka-bandi' at 'teen Puli', Sri Ganganagar. When the Jeep reached near the Barrier, it was stopped and on search, it was found that the accused Jagdish was driving the jeep and accused Amarnath and Ashok Kumar were sitting behind the driver's seat and the accused was Bulia sitting on front seat in the side of the driver. On further search, seven bags of illicit liquor bottles were found with Amarnath and Ashok Kumar and one bag of liquor's bottles was found with Bulia accused. They were seized, the samples were taken from the bottles and F. I. R. was recorded. The accused-petitioners were arrested. After investigation, a challan was put up in the court of the learned Munsif and Judl. Magistrate, No. 2 Sri Ganganagar. After completion of the trial, learned Magistrate convicted the accused petitioners for the offence under Sec. 54 (A) of the Excise Act and sentenced them as aforesaid. In appeal, the learned Sessions Judge has upheld the conviction but reduced the sentence. Being dissatisfied with the conviction and sentence, the accused petitioners came up in revision before this Court. Mr. M. K. Garg, and Mr. Anil Kumar Singh, learned counsel for the accused-petitioners submitted that the accused Jagdish Prasad was driving the jeep and he was not in possession of any illicit liquor. The Excise Party has taken four samples out of several bottles. The Excise Party, even while considering the seriousness of the offence, four samples have been taken out of several bottles, but the only emphasis of the learned counsel for the petitioners, is that before proceeding for search, the Excise Party should have obtained the warrants from the learned Magistrate or should have recorded the reasons in complying with the provisions of Sec. 47 of the Excise Act. The search was illegal, therefore, the conviction cannot be sustained on the basis of the recovery during search, and for that, they relied on the decision of this Court in Moolchand v. State of Raj. (1 ).
(3.) ON the other hand, the learned Public Prosecutor also relied upon the judgments of the courts below. After hearing the rival submissions, the facts as stated above, are not in dispute that the Excise Inspector and his party has neither obtained the warrant of arrests from the learned Magistrate nor he recorded the reasons for the belief that on the information, he presumed that the offence is likely to be committed thus, he has not complied with the provisions of Sec. 47 of the Raj. Excise Act, 1950. The, search was illegal and without effect, This Court had followed a decision of the Supreme Court in K. L. Subbaiya v. State of Karna-taka No distinguishing facts are brought to my notice or any case contrary to the view taken in the case above has been brought to my notice. I find no reason to depart from the view taken in Moolchand's case (supra) the conviction was not justified. In the result, these revision petitions are allowed. The conviction and sentence are set aside. The accused petitioners are on bail. Their bail bonds are hereby discharged. . ;