1. This is an application in revision by one Ramchandra who has been convicted by a Magistrate under Section 60(b) and (f), U.P. Excise Act, sentenced to six months and three-months' concurrent rigorous imprisonment under these sections and fine. The conviction and sentences were up-held by the Sessions Court. The evidence for the prosecution consisted of Sub-Inspector, Abdul Hai Khan of. Bareilly Kotwali, P.W. 2, Lakhpat Rai, son of Raghuber Dayal Kayastha, P.W. 3, Banne Khan, occupation given as service. These three persons state that on 25th March 1934, the house of the accused was searched and materials for the manufacture of illicit liquor were recovered and liquor was actually being manufactured and the accused, was present. The accused stated that he was not present, but he was working at a certain printing press and was called by the police. He states, that he locked up his house inside and. left the outside door open. He states, that none of the articles connected, with the manufacture of liquor belonged to him, but that he had enmity with Roshan. Lal, the brother of Lakhpat Rai, P.W. 2, and that Lakhpat Rai must have planted these articles, in his house in his absence. Some argument, was made by the Government Pleader in the Sessions Court that Lakhpat Rai was not the brother of Roshan Lal. I am unable to understand how this argument could be made because in the first line of his cross-examination Lakhpat Rai admits that he has a brother Roshan Lal. It is held by the Sessions Court that Lakhpat Rai has twice been convicted, once for forgery and once for robbery under Section 392, Penal Code. It is clear that a man who has been twice convicted of serious crimes of this nature is altogether unsuitable as a search witness. A Sub-Inspector makes a search under the provisions of Section 165(4), Criminal P.C., which applies the provisions of Section 103, so far as may be. Section 103, Sub-section (1) lays down that the Sub-Inspector shall call two or more respectable inhabitants of the locality to accompany him as search witnesses. Obviously Lakhpat Rai cannot be described as a respectable inhabitant of the locality. It is true that the search, list shows that there was another search witness whose name is Kifayat Ullah. That person has not been called as a. witness for the prosecution.
2. The prosecution has chosen to rely on the evidence of this man Lakhpat Rai. In my opinion Lakhpat Rai is altogether unworthy of credit. I am unable to understand why the Sub-Imspector brought, a man like Lakhpat Rai with him to the search. The Sub-Inspector says that he had already two search witnesses with him and on the way he met Lakhpat Rai. Knowing Lakhpat Rai as a man who had been twice previously convicted, he should not have asked Lakhpat Rai to act company him. He has chosen to take him with him on the search and he has chosen to put him forward as one of the two search witnesses for the prosecution. The Sub-Inspector is apparently, a man of considerable experience as he is the Sub-Inspect or of the Kotwali in. Barcilly. I am unable to understand why he has acted in the manner in which he has done if this case is a, genuine case. That being so his action suggests to my mind the conclusion that the case is not a genuine case. It is true that all the suggestions for the defence may not have been established. I consider however that enough has been show in this case to discredit the evidence for the prosecution. Another point about the Sub Inspector is that he states he did not obtain a search warrant before making his search. It is true that in an urgent case a Sub-Inspector may make a search for an offence against the Excise Act without obtaining a warrant from the Exercise Officer. It is not shown in the present case that there was any great urgency. If liquor was being manufactured at the house of the accused as the Sub-Inspector claims to have ascertained from a spy, then the Sub-Inspector being in Kotwali in Bareilly could have in a very short time obtained the warrant from the Excise Officer who was also presumably at head-quarters on 25th March 1934.
3. The defence have also pointed out that this Sub-Inspector, Abdul Hai and a witness Roshan Lai have been the subjects of adverse comment by a Bench of this Court in Criminal Appeal No. 285 of Emperor v. Ram Lal, Criminal Appeal No. 285 1934, where a conviction under Section 302, Penal Code, and sentence of death was set aside on 26th July 1924. It is certainly remarkable that these two cases should come before this Court in one of which I this Sub-Inspector is the subject of adverse comment along with a witness Roshan Lai and in the present case the Sub-Inspector is the subject of adverse comment along with Lakhpat Rai, who is the brother of Roshan Lal, and who has been twice previously convicted. The association of this Sub-Inspector with witnesses of this class is certainly a matter which should form the subject of an inquiry and accordingly I follow the example of the Bench and direct that a copy of this judgment should be sent to the Inspector-General of Police for such action, if any, as he desires to take.
4. Under these circumstances, I allow this application in revision and I set aside the conviction and sentences on the accused Ramchandra and I direct that he be set at liberty and that the fine, if realized, should be refunded.