1. The petitioner has been convicted under Section 46 (a) and (f) read with Section 62, Bengal Excise Act, and has been sentenced to rigorous imprisonment for four months. The Courts below have found that a quantity of illicit liquor and materials for illicit distillation were recovered from his house. The petitioner's defence was that he was not the owner of the house in which these articles were said to have been found, and that he had no knowledge of them, and that indeed he was not present at the time of recovery. The evidence for the prosecution consists of the testimony of the Excise Sub-Inspector who carried out the search, and of two search witnesses. On behalf of the defence four witnesses were examined all of whom deposed that the house in which the articles were recovered belonged to the petitioner's wife and that the petitioner was not there when those articles were found by the Excise Sub-Inspector. Upon an examination of the evidence of the Excise Sub-Inspector and the two search witnesses, we are of opinion that there were serious discrepancies in their evidence upon material points. The Sub-Inspector stated that he found one handi and one ghati, a still and a receiver respectively, in the bed room of the accused, while one of the search witnesses said that the accused produced them from his cook-shed; and the other search witness said that the accused produced them from his bed room.
2. This rule was issued upon the ground that the search was conducted in a manner which amounted to violation of the law. Section 103, Criminal P.C., requires that before making a search the officer or other persons about to make it shall call upon two or more respectable inhabitants of the locality to attend and witness the search. Section 81, Bengal Excise Act, has the effect of making this provision applicable to a search conducted by an Excise Officer. In the circumstances we consider it to be a matter of regret that both the search witnesses were found on their own admission to have been previously convicted for criminal offences. One of the search witnesses further admitted that he had a civil suit with the accused. Upon the fullest consideration of all the facts and circumstances in the case, we think that it would be unsafe to uphold this conviction. We feel that the accused ought to be given the benefit of the doubt, and that his conviction and the sentence passed on him must be set aside. This rule is made absolute. We direct that he be released from his bail.
3. I agree.