JUDGMENT

D.N. Roy, J. - Mahabir Prasad applicant has been convicted u/s 3 of the Public Gambling Act (No. III of 1867) for keeping a common gaming house and Misri Lal, Kapoor Chand, Ram Bharosey and Ram Dularey alias Parshoo applicants have been convicted u/s 4 of that Act for having been found in that gaming house for the purpose of gaming. The trial was a summary trial. Against their conviction and sentence they preferred a revision, but it was dismissed by the learned Sessions Judge. They have come up in revision to this Court.

2. Mr. Darbari, who has appeared on behalf of the Petitioners, has addressed me at length and the main grounds of his contention are set forth in the application for revision. The learned Counsel contends that according to the order promulgated by the local Government u/s 5 of the Act the warrant could be executed only by a police officer in charge of a police station not below the rank of Sub-Inspector, that in the present case the warrant under which the search took place was given to the station officer of the police station but, since he endorsed it in favour of his second officer who executed it and took the search, the execution of the warrant was illegal and consequently the fact of cards and money and ml having been found on search did not constitute evidence against the Petitioners as contemplated by Section 6 of the Public Gambling Act.

3. Learned Counsel for the State, on the other hand, whilst conceding that the endorsement of the warrant by the station officer of the police station to the second officer was an irregularity, contends on the authority of the ruling in Empress v. Musa and Ors. 1884 A.W.N. 59, which was followed and approved of by a Division Bench of this Court in Empress v. Hardeo Das 1884 A.W.N. 285, that the provisions of Section 517 of the Code of Criminal Procedure render an irregularity ineffective as it has occasioned no failure of justice. He further contends that even, if the provisions of Section 6 of the Public Gambling Act be held inapplicable by reason of the irregularity in issuing the warrant to the second officer, there is sufficient evidence to support the conviction, and that the witnesses who deposed to having seen these persons gambling and Mahabir Prasad the occupier of the house taking nal, could be acted upon in registering the conviction of the applicants.

4. Having considered the terms of Section 5 of the Public Gambling Act and the order of the Local Govt. in Notification No. 2195/ VI-349-1909 of 1910, published in the UP Gazette Part I dated 18-6-1910 at page 578 as to the rank of officers competent to execute warrants under that section. I am of opinion that the issue of the search warrant with the endorsement of the search warrant to the second officer of that police station was an irregularity which renders Section 6 of the Act inapplicable to the present case. The terms of the section clearly shows that the Legislature has attached importance to the rank of the officer who is competent to execute the warrant, and no warrant can be issued to any officer of police not below such rank as the State Government shall appoint in that behalf. The Notification aforesaid clearly laid down that the State Government u/s 5 of the Public Gambling Act appoint "Inspectors of police and officers in charge of police stations not below the rank of sub-inspector" as the officers who may be authorised to exercise the power described in that section. Under that Notification a second officer who is not in charge of a police station was not authorised to exercise the power described in Section 5. There can therefore be no doubt that the warrant was wrongly endorsed to the second officer and executed by him.

5. My attention has been drawn to three decisions of this Court, the first in Mahadeo Vs. Emperor, AIR 1920 All 150 , the other in Emperor v. Kashi Nath ILR 30 All. 60, and the third in Hannu Vs. The State, AIR 1955 All 231 . The last mentioned decision followed the e