1. Mukhtar Ahmad and Amir Ahmad have been convicted by a Magistrate on the charge of having caused hurt to an Excise Inspector, one Mr. D.D.C. Das, and certain constables in the discharge of their duties as public servants, and Lave been sentenced to imprisonment and fine. The conviction and the sentences Lave been aflirmed by the Sessions Judge on appeal. It seems to me that tLe Courts below have assumed, but cannot be said to Lave judicially determined, that the persons who were hurt were acting at the time in the discharge of their duties as public servants. They have dealt with the plea of private defence set up on behalf of the accused persons, and have excluded that plea by reason of the provisions of Section 99 of the Indian Penal Code. This finding implies that the Excise Inspector and the constables were resisted at a time when they, being public servants, were acting in good faith under colour of their office. That is not the same thing as a finding that they were acting in the discharge of their duties as public servants. The distinction was pointed out by a Bench of this Court in Queen-Empress v. Dalip 18 A. 246 : A.W. N (1896) 48. So far as my examination of the record goes, I do not find myself able to arrive at the conclusion that the Excise Inspector and the constables were acting in the discharge of their duties as public servants. Mr. Das, who was engaged in searching the house of Mukhtar Ahmad, accused, on suspicion that he might find there cocane, committed a number of irregularities in conducting this search. He had no warrant authorising him to make this search : he brought with him only one search witness (section 103 of the Code of Criminal Procedure), and nothing in Sections 102/48 of the same Code justified him in directing a constable to scale the outer wall and effect a burglarious entry into the house. Following the precedent set by the reported decision of this Court, which I have already quoted, I set aside the conviction of Mukhtar Ahmad and Amir Ahmad tinder Section 332 of the Indian Penal Code and in lieu thereof convict them of the offence of causing hurt under Section 323 of the same Code. I reduce the sentence to one of imprisonment for such period as they may have already undergone, together with a fine of Rs. 15 each. Any fine in excess of this amount which har; been paid by the applicants will be refunded. The accused need not surrender and their bail-bonds are discharged.