Irregularities in procedure do not necessarily vitiate a conviction if the evidence against the accused is overwhelming and the irregularity does not amount to a substantial denial of a trial.

ORDER :- This Revision is preferred against ,the conviction and sentence, by the learned 7th Presidency Magistrate, Egmore, in C.C. No. 9522 of 1958.

The facts are :- On the morning of 23-7-1958 at about 3-30 A.M. P.W. 1, the Sub Inspector of Police, Otteri, on information received, raided with a party including P.W. 2, the hut of the accused in Sivashanmughapuram "A" Block, Otteri. The accused was actually kindling the fire of an oven, A copper pot M. O. 1 containing fermented wash of about a gallon was placed over the oven. A perforated mud pot M. O. 2 was placed over M. O. I. M. O. 3 a receiver and pot was fixed on M. O. 2, which contained three drams of I.D. arrack. P.W. 1 collected this in a bottle M. O. 4. Over M. O 2 was M. O. 5 a condenser. The receiver pot was placed on some bricks, M. O. 6 series. P.W. 1 dismantled the arrangements. He also found three other bottles M. O, 7 series by the side of the accused. There were 9 gallons of fermented wash in them. P.W. 2 who had been taken by the Police and who witnessed the search was present during the seizure and attested the search-list Ex. P-l. The accused was arrested and on completion of the investigation the accused had been chargesheeted for an offence under Section 4(1)(b) and (g) of the Madras Prohibition Act.

2. The case for the accused was nothing more than that P.Ws. 1 and 2 were perjuring against him. He examined a defence witness who did not give any useful evidence. D.W. 1 stated that beyond seeing the accused being taken in the Police lorry that was standing outside accuseds house, he did not go inside the hut or see what was being taken in the lorry. On the other hand, the evidence of D.W. 1 corroborated the prosecution version that the hut of the accused was searched in the early hours of that morning. But this need not detain us because it is for the prosecution to establish the guilt of the accused and not for the accused to establish his innocence.

3. The learned Magistrate on examining the evidence from the abovesaid point of view, held that the prosecution has affirmatively and satisfactorily proved the guilt of the accused and found him guilty as charged and sentenced him to R I. for six months and to pay a fine of Rs. 100/-. The copper pot, perforated mud pot, receiver pot, the bottles and condenser exhibited were properly disposed of.

4. The learned advocate for the Revision Petitioner took three points before me viz., that the search witness was not a resident of the locality and was a witness in another prohibition case for the prosecution and that therefore there was an irregular search vitiating the trial and conviction; secondly, that there was non-compliance with the amended provision of S. 32 of Madras Act X of 1937 as amended by S. 16 of Madras Act VIII of 1958 and this irregularity vitiated the trial and conviction; and thirdly, that by reason of the definition of "wash introduced in S. 16 of Madras Act VIII of 1958, amending S. 32 of the main Act, a portion of the wash seized must have been sent to the Chemical Examiner. In my opinion, none of these contentions either singly or cumulatively vitiated the trial and conviction of the accused. I shall examine them one by one.

5. Point 1 :- In regard to two or more respectable inhabitants of the locality having to be associated in searches, the following information can be gathered from the standard text-books on the Criminal Procedure Code: A.I.R. Commentaries on the Criminal Procedure Code, Fifth Edition, page 268 : M.L.J. Commentaries on the Criminal Procedure Code. Third Edition, Revised by M. A. Krishnaswami pp. 183-184; B.B. Mitras Criminal Procedure Code, Twelfth Edition (1953) Pp. 202-205; S. Ranganadha Aiyars Criminal Procedure Code, 7th Edition (1954) P. 212 and Foll. : S.C. Sarkars Criminal Procedure Code (1958) Pages 102-103.

6. Section 103 of the Criminal Procedure Code embodying the general principle of searches requires that the search should be conducted in the presence of t