J.N. Wazir, C.J.
1. Dhani Ram was convicted under Section 48 of the Excise Act by the Special Magistrate, first class, Jammu and sentenced to six months rigorous imprisonment with a fine of Rs. 200 and in default of payment of fine to undergo two months further rigorous imprisonment. On appeal the Sessions Judge affirmed the conviction under Section 48 and also the sentence passed thereunder. The accused has come up in revision to this Court,
2. The case for the prosecution as disclosed by the evidence is that Order 9-5-1957 Mangat Singh Sub-Inspector of Police Bishnah on getting information that the accused was working still and preparing illicit liquor raided the house of the accused in presence of Munshi Singh and Dina Nath and recovered (1) Sagla Patila containing refuse of Lahan which was placed on a Choola out of which illicit liquor was being distilled, (2) an earthen pot which was pasted with earth on the face of Sagla, (3) a Degcha in which fresh distilled liquor was lying and (4) a bamboo pipe instrument used for distillation.
These articles were sealed and the seal was kept with Dina Nath on Sapurdnama. A recovery list was also prepared which was signed by the witnesses, The matter was reported to the Excise Inspector Jammu and the accused, after investigation, was prosecuted.
3. The learned Counsel appearing for the petitioner has argued that the recoveries made from the house of the accused were not presented before a Magistrate as provided by Section 46 of the Excise Act which reads as under:
All liquor or contraband articles seized under this Act shall without delay be taken before the nearest Magistrate, The liquor or the articles or the samples thereof shall be sealed by the Magistrate with his own seal and shall be kept in the custody of the officer seizing them pending orders of a Magistrate competent to try the offence committed with respect to the liquor or the articles.
4. In the present case the articles recovered were never produced before the Magistrate at the time of recovery but later on were produced before the trial Magistrate. After the articles were sealed, the seal was handed over to one of the prosecution witnesses Dina Nath and the seal remained with him till the articles of recovery were produced before the trial Magistrate. It is argued that the mandatory provisions of Section 46 were not complied with and, therefore, the trial is vitiated.
5. Section 46 has been enacted to ensure that the incriminating articles should not be tampered with by any one after they are recovered from the possession of the accused and for that purpose it is provided that these articles without delay should be taken to the nearest Magistrate. If the provisions of this Section are not strictly complied with it would not be fatal to the prosecution unless it is shown by the defence that some prejudice has been caused to him.
In other words, there should be some material brought by the defence to show that proper precautions have not been taken to preserve these articles in the manner in which they have been recovered from the accused and that there was every likelihood of these articles being tampered with in the manner they were kept after they were recovered. If such a material exists on the record, the conviction on the basis of the recoveries cannot be maintained. But if no such material exists the mere fact that they were not produced before the Magistrate would alone be not sufficient to vitiate the trial. In H. N. Rishbud v. State of Delhi, (S) : 1955CriLJ526 , it has been held:
A defect or illegality in investigation, however, serious, has no direct bearing on the competence-or the procedure relating to cognizance or trial. No-doubt a police report which results from an investigation is provided in Section 190, Criminal P. C, as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the-court to take cognizance. Section 190, Criminal P. C, is one of a group of sections under the heading 'Conditions requisite fox initiation of proceedings'. The language of this section is in marked contrast with that of the other sections of the group under the same heading i. e. Sections 193 and 195 to 199. These latter sections regulate the competence of the court and bar its jurisdiction in certain eases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190 (1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity.
Such an invalid report may still fall either under Clause (a) or (b) of Section 190 (1) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 Criminal P. C. is attracted.
If, therefore, cognizance is in fact taken, on a-police report vitiated by the breach of a mandatory provision relating to investigation, there can be-no doubt that the result of the trial which follows-it cannot be set aside unless the illegality in the-investigation can be shown to have brought about miscarriage of justice.
6. In the present case the fact that the seized articles were not taken to the Magistrate and were not sealed in his presence has not been shown to have caused any prejudice to the accused, and, therefore, this fact has not caused any miscarriage of justice to the accused,
7. The prosecution has produced three witnesses in this case, Mangat Singh, Dina Nath and Munshi Singh Numberdar. I have gone through their statements and I am of opinion that their evidence does not satisfactorily establish the offence-under Section 48 of the Excise Act against the accused.
8. From the evidence of Mangat Singh Sub-Inspector Police it appears that the accused was sleeping besides the hearth where the illicit liquor was being manufactured in some utensils. The other witnesses Dina Nath and Munshi Singh deposed that the articles used for manufacturing illicit! liquor were recovered from the house where the accused resides.
These two witnesses have given contradictory statements in regard to the ownership of the house. Munshi Singh at one place stated that the house was solely owned by the accused but at another place he deposed that it was owned by the accused his father and his brother and they were living therein. Dina Nath's statement is also not very convincing inasmuch as at one place he stated that the house was in exclusive possession of the accused but at another place he mentioned that it was in joint possession of the accused, his father and his brother. In face of these statements of the witnesses it cannot be said that the accused was in sole possession of the house wherefrom the incriminating articles were recovered.
9. The statement of Mangat Singh does not show that the accused was in possession of the incriminating articles. According to him the accused was sleeping when the recoveries were made. It is not clear from his statement that the accused was in charge of the incriminating articles at the time when they were recovered from the house. On the other hand it appears from his statement that he was sleeping in the room when the search was made by them.
The possibility of some one else having started the still cannot be ruled out especially when there were some, other persons besides the accused living in the house. In these circumstances the prosecution evidence does not bring home the guilt to the accused under Section 48 of the Excise Act beyond any manner of doubt.
10. I, therefore, allow this revision application, set aside the conviction and sentence of the accused and giving him the benefit of doubt acquit him. The accused is on bail. His bail-bonds shall stand cancelled. The fine, if paid, shall be refunded to the acsused.