JUDGMENT

1. This is an appeal by Government against an acquittal. The person acquitted was Maiku Pasi. The charge was under Section 60(a) and (f) of the U.P. Excise Act, IV of 1910. The case for the prosecution is that Mr. Shambhu Nath Misra, Excise Inspector, received information from an inform, whose name is not disclosed, that Maiku had manufactured liquor overnight. He recorded his reasons for dispensing with the warrant, which were that Maiku would have an opportunity of making away with the liquor and the instruments of distillation. He then went to Maiku's village accompanied by Maqbul Aziz, Sub-Inspector of Police, a head-constable and two constables, and one excise peon. When they reached the village, they picked up two witnesses, Bhawani who is the mukhya of the village, and Lalla Bania. The party proceeded to Maiku's house where they found Maiku's wife. She said that Maiku had gone to Unao. The search took place in her presence, and one full bottle of country liquor and one bottle half full were found. There was also a basket of Mahwa flowers, a still, a still-head and a pipe. The pipe was concealed in the roof. The other things were in a room which was fastened with a chain. The two bottles were in a box which was in a box which was looked. The key was obtained from Maiku's wife. The still itself was built of pukka bricks. The Excise Inspector, the Sub-Inspector, and the witness Bhawani, who is the headman of the village, have been examined. The other witness, Lalla Bania, was not produced by the prosecution. Maiku, accused, said that he was not present at the time, but he denied that the things were found in his house. He also denied the presence of his wife. He produced two witnesses in his defence, Sheo Din Lodh, who said that he was present at the time of the search, and that nothing was found except an earthen pot and a frying pan outside the house. The witness said that neither Maiku nor his wife was present, and he said: "I saw dispute arising between the village headman and the accused for pigs who destroy fields." This last statement of course is quite insufficient to establish any enmity between the headman and Maiku. Neither time nor place is given of the supposed quarrel. No cross-examination was addressed to Bhawani on the point. The other witness Debi is a Pasi, as Maiku is. His deposition is not clear. He says that Maiku and his wife were not there at the time, but, as he also says that no search took place at all, it is not clear to what occasion he is referring. The learned Magistrate states in his judgment that the Excise Inspector, the Sub-Inspector and the mukhya fully support the prosecution story. He has acquitted largely because the other witness Lalla Bania was not produced by the prosecution. We desire to call the attention of the Magistrate and through him of all Magistrates, to the exact wording of Section 252(2) of the Criminal Procedure Code. This was a warrant case.

The Magistrate shall ascertain from the complainant, or otherwise; the names of any persons likely to be acquainted with the facts of the case, and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary.

2. The duty of seeing that all the evidence, essential to the prosecution case, is before the Court is thrown by the Code upon the Magistrate himself. It is not open to a Magistrate to acquit on the ground that the prosecution has failed to produce a necessary witness. We have not thought it necessary to send for Lalla Bania. We see no reason to suppose that the Excise Inspector, the Sub-Inspector and the headman of the village have concocted an entirely false case against Maiku, and that is what the defence amounts to. The discrepancies pointed out by the learned Magistrate in his judgment do not appear to us to be of any importance. On the Question where the two witnesses joined the search party there is no real discrepancy, if the evidence is r