HARIKISHAN ALIAS TOTEY Vs. STATE

JUDGEMENT

(1.) This criminal revision has been referred to this Bench for decision at the instance of Gupta, J. The question, which arises for determination in this case, is whether the conviction of the Applicant Under Sec. 25(1)(a) of the Arms Act, 1959 is vitiated on account of the fact that the search as a result of which the unlicensed arms were recovered, was not conducted, in accordance with the provisions of Sec. 165 Code of Criminal Procedure. Before Gupta, J., a decision of D.D. Seth, J. in Prayag Singh v/s. State Cr. Rev. No. 1961 of 1967 D/ - May 22, 1968 reported in, 1968 ACR 295 :, 1968 AWR 454, was cited but, finding himself unable to agree with this decision, he made this reference.

(2.) In Prayag Singh's case, the accused was a member of a P.A.C. Battalion. On a search of his barracks by the Company Commander, the Platoon Commander and a Head Constable, 55 rounds of live cartridges of 303 Bore Rifle and 8 chargerclips were recovered from his box. At the trial, the recovery of the cartridges and chargerclips was proved by the statements of the persons who conducted the search. The accused was convicted Under Sec. 25(1)(a) of the Arms Act by a magistrate and the conviction was upheld in appeal. In revision D.D. Seth, J. came to the conclusion that the Company Commander was not an officer authorised to make a search by Sec. 165 Code of Criminal Procedure and observed:

(3.) It is now well settled that any irregularity or illegality in the investigation of a case does not, by itself, vitiate the trial or the conviction. In Niranjan Singh v/s. State of UP : 1956 SCR 734 : AIR 1957 SC 412, the Supreme Court has observed: