DORIK SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner stands convicted for an offence under Section 47(a) of the Bihar and Orissa Excise Act (hereinafter referred to as 'the Act'), and sentenced to pay a fine of Rs. 300/ -. in default to undergo rigorous imprisonment for three months.

(2.) THE case of the prosecution, in short, is that on the 17th July, 1966, at about 3 P.M. the Sub -Inspector of Excise (P.W. 1) raided the house of the petitioner and recovered 933 grams of non -duty paid ganja 1 kilogram ganja, 300 grams of wild bhang and some weights etc. A seizure list of the articles seized was duly signed by witnesses and the accused (the petitioner). The defence of the petitioner at the trial was of innocence and false implication.

(3.) MR . Prem Shanker Sahay, learned counsel appearing for the petitioner very rightly did not challenge the finding of fact, but raised two points in support of the application. His first contention was that one of the search witnesses (Sidique) was not the resident of Singheshwar Asthan where the search was made, but he was resident of about four miles away from that place. But even if so, the non -compliance of the provision of Section 103 of the Code of Criminal Procedure can, at best, be said to be a case of irregularity, which cannot be challenged after the conviction has been recorded in absence of prejudice to the petitioner. There is nothing on the record to show that any prejudice has been caused to him. The other submission was that Section 74 of the Act was not complied with. The Section runs as follows : -