JUDGMENT

H.P. Asthana, J. - Smt. Ram Devi has been convicted u/s 60(a), (b) and (f) of the Excise Act and has been sentenced to 3 month's rigorous imprisonment on each count, the sentences being concurrent. Her husband Chunni has been convicted u/s 60(a) and (f) of the Act and has been sentenced to 3 month's rigorous imprisonment on each count, the sentences being concurrent. They have come up in revision.

2. It appears that on receipt of information that the applicants were manufacturing illicit liquor in their house in vil. Surajpura, P.S. Iradatnagar, Distt. Agra, the Excise Inspector raided the house on 17th December, 1952 along with three witnesses, namely, Khem Karan Mukhja, Surajmal and Babu Lal and two other persons, namely, Chhote Lal and Mitthan Lal. Mitthan Lal is the driver of the bus in which the Excise Inspector went to village Surajpura. The applicant Smt. Ram Devi was found manufacturing illicit liquor and some illicit liquor was also found prepared and in her possession. Chunni was not present at the time of the recovery. Both these persons were sent up for trial u/s 60(a), (b) and (f) of the Excise Act.

3. The applicants denied that they were manufacturing illicit liquor or that they were found in possession of any illicit liquor or apparatus for manufacturing the same. Their case was that they had been falsely implicated by one Chhotey with whom they had enmity.

4. The prosecution examined six witnesses in support of the case, including the Excise Inspector Sri K.S. Varma. Three of the witnesses, namely, Khem Karan, Surajmal and Babu Lal, who are residents of Surajpura, turned hostile and did not support the prosecution case. Sri K.S. Verma, Ghhotey Lal and Mitthan Lal, however, supported the prosecution story and deposed that Smt. Ram Devi was found manufacturing illicit liquor and that the apparatus for manufacturing it was also there besides some illicit liquor which had already been prepared. This evidence was believed by both the lower courts and the applicants were convicted. It has been contended on behalf of the applicants that the Excise Inspector had not obtained a search warrant from the Magistrate as required under Rule 277 of the Excise Manual, and in view of this defect the recovery was not reliable. The Excise Inspector Sri K.S. Varma in his statement has said that there was no time for obtaining a search warrant because if he had taken that step the applicants could not have been arrested with the incriminating articles. The provision for obtaining a search warrant is directory and not mandatory and it cannot be said that if such warrant is not obtained from a magistrate before making a search the search becomes illegal and no conviction can be based on it. In my opinion the ommission to obtain search warrant before making the search is merely an irregulity and it will not affect the merits of the case unless the accused have been prejudiced on account of it. I am not satisfied that in this case any prejudice has been caused to the applicants for non-compliance of the aforesaid provision. Moreover, the Excise Inspector has given an explanation as to why he could not obtain the search warrant from the Magistrate before making the search.

5. It was next contended that the illicit liquor was not sent by the Excise Inspector after the recovery to the Magistrate but was sent direct by him to the Chemical Examiner for examination. It, however, appears from an examination of the record that a report was submitted by the Excise Inspector to the Magistrate for the despatch of the illicit liquor to the Chemical Examiner and it was sent by the Magistrate to the Chemical Examiner for examination. The report of the Chemical Examiner was also addressed to the Magistrate in reply to the letter which had been sent by him for examination. In circumstances this contention has no force.

6. The next contention is that the applicant Smt. Ram Devi could not be sentenced separately u/s 60(a) and (f) when she had already