RANAWAT, C.J. - (1.) THIS is an appeal by the State from the judgment of the Munsiff-Magistrate, First Class, Gangapur, dated July 13, 1961, acquitting Shrinarain of an offence under sec. 54 of the Rajasthan Excise Act.
(2.) IT was alleged by the prosecution that the house of the accused Shrinarain was raided by Excise Inspector Chander Bhan Agarwal on the 13th of December 1959. He found the house locked and when he broke open the lock and took the search, he recovered 4-1/2 bottles of illicit liquor from it. Shrinarain was, accordingly, prosecuted under sec. 54 of the Rajasthan Excise; Act. The accused pleaded that illicit liquor was not recovered from his residence, and that he had no house in the locality from which the Excise Inspector is alleged to have made the recovery of illicit liquor. The learned Munsiff-Magistrate, Gangapur, after holding a trial, held that the house, from which the recovery was made by the Excise Inspector of illicit liquor, belonged to the accused and was in his possession. He further held that Arts. Exs. 1 to 5 were recovered in a search conducted by Excise Inspector Agarwal from the said house. After having arrived at the aforesaid finding against the accused, the learned Magistrate considered the effect of an irregularity in the search taken by the Excise Inspector because of the Inspector's failure to comply with the provisions of sec. 47 of the Rajasthan Excise Act in recording reasons which in the opinion of the learned Magistrate were not sufficient to warrant a search without the authority of a Magistrate. In the opinion of the Magistrate the search being illegal, the recovery was also illegal. In this view of the matter, he recorded an order of acquittal in favour of the accused. In this appeal, it is contended that the learned Magistrate was in error in thinking that the recovery of the illicit liquor from the house of the accused was illegal for the reason that the search was illegal. Mr. Dutt, for the accused, has argued that the evidence on the record is not sufficient to prove that the stuff recovered from the house was illicit liquor. Mahabir Sahai P.W. 4, Excise Inspector, examined the stuff that was recovered from the house of the accused, and he has expressed an opinion that it was illicit liquor. He has stated that the colour and the strength of the liquor were different from those of the authorised one, and he came to the conclusion that it had been manufactured by 'kachhi bhatti'. No questions were put to him in cross-examination to shake this part of his testimony. The cross-examination was directed in this connection only on the point whether the stuff examined by him could resemble "Kesar-Kasturi" after water was added to it. The witness replied that, in such a case, there would be difference in the colour, suggesting that the stuff which had been recovered could not have been diluted "Kesar Kasturi". We think the testimony of Mahabir Sahai leaves no room for doubt that the stuff recovered was illicit liquor. Having regard to the findings arrived at by the learned Magistrate regarding the recovery of the articles 1 to 5 from the house of the accused, and the evidence on record, we think there is no doubt that the alleged illicit liquor was recovered from the house of the accused in course of the search conducted by Shri Agarwal. Assuming that the reasons recorded by Shri Agarwal were not sufficient to entitle him to take a search without a warrant, the question arises whether the recovery and the trial were vitiated on that account? State of Rajasthan Vs. Rehman(1) has been referred to by Mr. Dutt in this connection. That was a case in which resistance was offered by the accused in a search which was not legal, and it was held that he was entitled to do so. No such question is involved in the present case, and the observations of their Lordships in that case cannot be of any help to the accused. Mr. Agarwal, according to the counsel for the respondent, had no authority to take a search of the premises of the accused, and, if the accused had obstructed him, he would have been well within his right to do so. However, no obstruction was attempted by the accused and the search was therefore taken and the recovery of illicit liquor was effected. Since it has been established beyond any doubt that illicit liquor was recovered from the house of the accused, the illegality or the irregularity in the search cannot dislodge the recovery. We think the learned Magistrate was clearly wrong in holding that the recovery was vitiated because of an illegality or irregularity in the conduct of the search. We are supported in this view by the decision in Rure Mal and another Vs. Emperor(2), wherein it was held that a regularity or irregularity in a search can neither vitiate the trial nor affect the conviction of the accused where he has not been prejudiced by such a defect. The learned Magistrate, therefore, committed an illegality in acquitting the accused because of the aforesaid illegality in the search. The appeal is allowed, and the order of acquittal of the Munsiff-Magistrate is set aside and Shrinarain is convicted of an offence under sec. 54 of the Rajasthan Excise Act for possession of illicit liquor. In view of the small quantity of liquor recovered from him, and also the fact that this is his first offence, we are inclined to pass a lenient sentence. Shrinarain is sentenced to imprisonment till the rising of the court and a fine of Rs.100/- or in default one month's rigorous imprisonment. He shall be allowed one week's time to deposit the amount of the fine, failing which he shall be sent to jail to undergo the sentence in lieu there of. The concerned District Magistrate may be informed to carry out the sentence. ;