1. This appeal raises a short question as to the validity of the order of acquittal passed by the learned Additional Sessions Judge, Kolhapur, solely on the ground that the search made prior to the institution of the present proceedings was illegal. A charge was levied against the respondent under Section 65(b), Bombay Prohibition Act.
The learned Magistrate who tried the case was satisfied that the charge had been proved beyond a reasonable doubt. Accordingly the respondent was convicted of the offence charged and sentenced to suffer rigorous imprisonment for four months and to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for two weeks.
This order was challenged by the respondents before the learned Additional Sessions Judge at Kolhapur and the only point which appears to have been raised before the learned Judge was that the search was illegal. The learned Judge accepted this point and we will assume that the learned Judge was right in coming to the conclusion that the search carried out by the police patil was illegal.
But we do not see how from the bare circumstance that the search was illegal it follows that the case against the respondent had not been proved. However much we would like to discourage over-enthusiastic citizens from carrying out illegal searches of this kind, when the matter is brought before the Court, the Court must scrutinise the evidence and find out whether the offence is proved or not.
In dealing with evidence of a search which is illegal, the Court would have to examine the evidence very carefully, eliminate the possibility that the search may have been result of private malice, and then decide whether the search and the evidence relating to the discovery of incriminating material has been proved beyond a reason-able doubt.
In our opinion, it would be going too far tohold that only because the search is illegal the accused must be acquitted. In that view of thematter, we must set aside the order of acquittalpassed by the lower appellate Court and send thecase back to the learned Additional Sessions Judgefor disposal in accordance with law.
2. Appeal allowed.