NILAMBAR SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision which is directed against the conviction of the Petitioner under Section 47(a) of the Bihar and Orissa Excise Act, 1915 (shortly, 'the Act') came up for hearing before a learned single Judge of this Court, and he, having noted divergence of views expressed in certain decisions of this Court (infra) on the question whether violation of the provision of Section 74 of the Act would render the conviction illegal (which is the main point involved in the revision), deemed it necessary to refer the case for decision by a larger Bench. The learned Judge also felt the necessity to bring to the fore the distinction between Sections 70 and 74 of the Act.

(2.) BEFORE we express our views on the aforesaid two aspects of the case, let the broad facts and the relevant provisions of the law be noted. What had happened was that on 31 -5 -1982 the Excise staff, having got reliable information that the Petitioner had stored illicit liquor and was selling the same raided and searched his house and recovered 18.5 liters of illicit liquor? The defence was one of denial. In support of its case, the prosecution examined five witnesses and the accused also produced one witness. The learned trial Court on appreciation of the evidence on record was satisfied about the guilt of the accused and convicted him under Section 47(a) of the Act and sentenced him to undergo rigorous imprisonment for six months and pay a fine of Rs. 500/ - and, on default, to undergo simple imprisonment for one month more. On appeal being preferred the same has been dismissed. Hence this revision.

(3.) ONE of the points for determination by this Bench is as to what would be the effect if a search is conducted as permitted by Section 74 of the Act without recording the grounds of belief required by the section. In Krushnachandra v. State,, 58 (1984) C.L.T. 210, which was a case in which conviction under Section 353, I.P.C. was challenged, it was held that illegality in search following non -recording of the grounds of belief as required by Section 74 of the Act would make the search illegal and would vitiate the entire proceeding. This view was taken by relying on K.L. Subhayya v. State of Karnataka, : 1979 Cri LJ 651 : : A.I.R. 1979 S.C. 711. Reference was also made to State v. Raheman, : : A.I.R. 1958 Raj 296, which was also a case challenging conviction under Section 353, I.P.C. (The Rajasthan High Court's view was subsequently affirmed in State v. Raheman, : : A.I.R. 1960 S.C. 210).