HAJARI TIKA LODHI Vs. EMPEROR

JUDGEMENT

(1.) 1. On a challan presented by the Sub-Inspector of Excise, Balaghat the applicant was convicted by Mr. Abbasi, Tahsildar and Magistrate, Second Class, Balaghat, of an offence Under Section 34(a), C.P. Excise Act, for illicit, distillation on the ground that fermented Mohwa was found in his house. In the challan two persons Bhadur Lodhi and Jethu Lodhi of Patharwada village, where the accused resides, were cited as witnesses for the prosecution. Both of them were present on 31st October 1933 along with the Sub-Inspector of Excise who apparently conducted the prosecution; but only one of them Jethu was examined and the other given up "as hostile." It is stated in the order-sheet of that date that the "Excise Sub-Inspector wants to produce two more witnesses." The case was therefore adjourned to 4th November 1933 on which date the Excise Sub-Inspector brought with him Nanhe and Nanhu who were then examined as prosecution witnesses 2 and 3. Both these men apparently came unsummoned and are residents of Balaghat. Jethu (P.W. 1) stated that from the cattle-shed of the applicant a pot full of fermented Mohwa containing haldi and salt was recovered at the search and that the accused then said that he had fermented the Mohwa for feeding his bullocks. The two other witnesses for the prosecution also admitted that the fermented Mohwa seized from the house of the accused contained salt and haldi. The accused examined four witnesses in his defence who stated that the fermented Mohwa like the one seized from the house of the accused which contained haldi, salt and fitkari was meant for feeding bullocks. In spite of this evidence on record the trying Magistrate held that the fermented Mohwa seized from the house of the applicant was not meant for feeding his bullocks and he convicted him Under Section 34(a), C.P. Excise Act and sentenced him to pay a fine of Rs. 60 or in default to undergo rigorous imprisonment for 11/2 months.

(2.) ON appeal while holding that the seizure of the Mohwa from the house of the applicant was illegal and that the seized Mohwa was mixed up with the other ingredients as deposed to both be the prosecution and the defence witnesses, Mr. Shrivastava, Magistrate First Class, who heard the appeal, maintained the conviction for the reason that because the quantity of the Mohwa was large it could not conceivably be required for the use of two bullocks only which the appellant possessed. The accused has now come up to this Court in revision. On a rule being issued to the District Magistrate to show causa why the conviction should not be quashed for the reasons stated in the application for revision that learned officer very properly replied that he had no cause to show. In my opinion the conviction of the applicant is altogether illegal and unwarranted. The seizure memo (Exh. P-1) does neither contain the signature of the officer who made the search nor is it attested by Nanhe (P.W. 2) and Nanhoo (P.W. 3), the men from Balaght who deposed to the search. I entirely agree with the observations of the appellate Court that the practice of taking witnesses from Balaghat as seizure memo witnesses which was adopted by the Sub-Inspector of Excise in this case was unwarranted as Section 58, C.P. Excise Act, makes the provisions of the Criminal Procedure Code applicable in regard to search and seizure of exciseable articles and these require that the witnesses to the search must be residents of the locality. It is astonishing that although the Sub-Inspector of Excise himself conducted the prosecution he did not go into the witness-box to prove the seizure memo. Technically therefore the seizure memo remained unproved and the search was also not proved to have been conducted according to law.