JADISH RAWAT Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This revision is directed against the judgment and order dated 24/8/1984 passed by IVth Additional Sessions Judge, Mirzapur dismissing the appeal of the applicants and reducing the sentence from 6 months to 3 months rigorous imprisonment in a case under section 60 of the U.P. Excise Act, (For short the Act.

(2.) Brief account of the events leading to the present revision is that the applicant along with 2 others were prosecuted for an offence under section 60 of the Act as recovery of 2 bundles of liquor was made near Amghat Bridge from Car No: U.P.L. 3552 occupied by the applicants along with 2 other accused. Owner of the said car was one Narain who has filed a separate revision. The applicants denied the recovery and alleged to have been falsely implicated. Learned Magistrate relying upon the statement of R.P. Bharti, Sub-Inspector of Police, P.W. 1 and other prosecution witnesses convicted the applicants under section 60 of the Excise Act and sentenced 6 months R.I. The appeal filed by the applicants failed except reduction in sentence as pointed out above.

(3.) Learned counsel for the applicants urged that in view of section 53 of the Act Police officer has been given power to make a search without a search warrant being issued from the Collector but that can only be done when there is no time to obtain the search warrant but there is a proviso added to section 53 to the effect that in such a case police officer shall before entering such place for search, record the grounds of his belief for the same. In the instant case nothing was done hence entire search was illegal and the applicants could not be convicted. Reliance was placed on K.L. Subbayya v. State of Karnataka.