JUDGMENT : R.K. Das, J. - This appeal has been filed by the State of Orissa against an order of acquittal of the Respondent passed by Sri N.K. Das, Magistrate, Second Class, Berhampur, OB 6th December 1960. 2. The prosecution case is that there is a Nisa Nivaran Samiti in village Kukudakhandi in the district of Ganjam of which P.W. 1 and some other P.Ws. are members. They received information that the accused-Respondent was selling illicit liquor to the members of the public. With a view to catch him, P.W. 2 Upendra Patnaik was deputed to purchase liquor from the accused on 31-8-1959 at about 7 PM. P.Ws. 1, 3 and 4, however, followed him. While the accused was offering liquor contained in a girts tumbler (M.O. 11), P.Ws. 1, 3 and 4 immediately rushed to the spot and P.W. 1 caught hold of the glass tumbler from the hand of the accused in the presence of P.Ws. 3 and 4 and brought the accused and the glass tumbler containing liquor to the Sarpanch Office. Thereafter they sent information to Village Munsif (P.W. 8) who arrived at the spot and took charge of the liquor and the accused. The accused admitted his guilt before the members of the Panchayat including the Sarpanch P.W. 5 and the President of the Village Prohibition Committee (P.W. 6) and gave a confessional statement (Ex. 3). Thereafter information was sent to the Antismuggling Officers of the Excise Department. Next day, that is, on 1-9-1959, P.W. 7, Excise Sub Inspector, arrived in the village seized the glass tumbler containing the liquor produced by the Sarpanch and the Village Munsif as also Ex. 3, the statement of the accused. He prepared a seizure list under Ex. 1 and arrested the accused and released him on bail He put the liquor in a bottle and sealed the same. After investigation he submitted a report to the Magistrate for taking necessary action. He tested the contents of the sealed bottle (M.O. 1) in the Court and found the same to be liquor. 3. It may be mentioned here that the village Kukudakhandi comes within the prohibited area where any possession of liquor amounts to an offence. The accused therefore was sent up for trial u/s 47(a) of the Bihar and Orissa Excise Act. 4. 3. It may be mentioned here that the village Kukudakhandi comes within the prohibited area where any possession of liquor amounts to an offence. The accused therefore was sent up for trial u/s 47(a) of the Bihar and Orissa Excise Act. 4. The learned Magistrate acquitted the accused on the grounds: (i) that P.W. 1 who effected the arrest of the accused and the seizure of the liquor from the accused had no authority under the Bihar and Orissa Excise Act or Rules made there under to do the same; (ii) the Excise Sub-Inspector having found liquor not from the possession of the Village Munsif (P.W. 8), the latter should have been put on trial; and (iii) that as the glass tumbler containing liquor was lying with P.W. 8 for the whole of the night before it was seized by the Excise Sub-Inspector, there was scope for adulteration or substitution of its contents and as such it does not conclusively prove the guilt of the accused. 5. The accused is not represented in this appeal by any counsel. Necessarily therefore I had to take pains of examining the entire evidence and the Law from the point of view of the accused in order to see if any case has been made out against the accused and if the grounds on which the accused has been acquitted are justified, both on facts and law. 6. Before I proceed to examine the evidence in this case, it is necessary to examine some broad legal questions that arise in this case. The learned Magistrate has assumed that the initial arrest and seizure by P.W. 1 being unauthorized and illegal the trial is vitiated and that the liquor that was seized by P.W. 7 was not from the custody of the accused but from the custody of P.W. 8 and therefore the accused cannot be said to be found in possession of the liquor. According to him the only person who could have been proceeded with by the Excise sub-inspector P.W. 7 was P.W. 8 from whose possession P.W 7 recovered the contraband liquor. At the outset I must say that this was not the correct approach to the case. If the accused ultimately would be found guilty of the offence or not is a different matter. But the prosecution case is that the liquor was recovered from the possession of the accused. At the outset I must say that this was not the correct approach to the case. If the accused ultimately would be found guilty of the offence or not is a different matter. But the prosecution case is that the liquor was recovered from the possession of the accused. The liquor certainly was not found from the illegal possession of P.W. 8 in the eye of law. P.W. 8 was simply in interim custody of the same until an Officer properly authorised to seize the same reached the spot next morning. Section 47(a) does not contemplate such possession to be (sic) offence. 7. The next question would be whether the trial, so far as the accused is concerned, can be said to be illegal because of the seizure and arrest made by P.W. 1 who was not authorized under the law to do the same. In this connection it may be noted that after his arrival the Excise Sub-Inspector (P.W. 7) seized the liquor, arrested the accused and released him on bail. After due investigation, P.W. 7 submitted his report u/s 78(4) of the Bihar and Orissa Excise Act and the Magistrate took cognizance u/s 87 of the said Act. Section 77, Sub-section (2) of the said Act authorises the Excise Sub-Inspector to investigate the offence and submit a report to the Magistrate having power to take cognizance of the case. Such a report shall be deemed to be a Police report for the purpose of Section 190 of the Code of Criminal Procedure as provided u/s 78(4) of the Bihar and Orissa Excise Act. Section 87 of the said Act authorises a Magistrate to take cognisance in respect of an offence u/s 47 of the said Act on the basis of a report of an Excise Officer. There cannot therefore be any dispute about the fact that whatever might be the alleged illegality or irregularity that might have been committed prior to the arrest and seizure by P.W. 7, so far as are investigation, submission of report and cognizance by the Court are concerned, they had been done strictly in accordance with the provisions of the Bihar and Orissa Excise Act. Assuming the seizure and the arrest made by P.W. 1 were illegal, it cannot be said that the trial itself has been vitiated. Assuming the seizure and the arrest made by P.W. 1 were illegal, it cannot be said that the trial itself has been vitiated. In support of the contention, a case reported in AIR 1944 73 (Privy Council) may be noticed. There the accused was not a British subject but a native of Jind State in which he resided committed an offence within the jurisdiction of a British Indian Court. He was arrested in the State of Jind by the British Indian Police and was subsequently extradited and handed over to the British Indian authorities by the Jind State. The accused was brought to trial and convicted by the British Indian Court within whose jurisdiction he had committed the offence. The accused contended that his arrest having been effected in the Jind territory by a British Indian Officer was illegal and that illegality of his arrest vitiated the subsequent proceedings. Their Lordships held: That when the accused was presented for trial before the British Indian Court he had been validly surrendered to that Court by the Jind authorities and therefore the proceedings before that Court were regular and in order and the validity of the trial and the conviction of the accused could not be affected by any irregularity in his arrest. Their Lordships quoted with approval a decision reported in Emperor v. Vinayak Damodar Sarvarkar ILR 35 Bom. 225. In the Bombay case a Bench of three Judges held that: Where a man is in the country and is charged before a Magistrate with an offence in the Penal Code it will not avail him to say that he was brought there illegally from foreign country. There also this very question arose as to the effect of an illegal arrest in the trial itself. Scott, C.J. in that decision quoted from the charge to the jury of Lord Cockburn C.J. in a case of Queen v. Nelson and Brand: If he were brought here for trial, it would not be a plea to the jurisdiction of the Court that he had escaped from justice and that by some illegal means he had been brought back. It would be said 'Nay, you are here; you are charged with having committed a crime and must stand your trial. We leave you to settle with the party who may have done an illegally act in bringing you into this position; settle with him'. It would be said 'Nay, you are here; you are charged with having committed a crime and must stand your trial. We leave you to settle with the party who may have done an illegally act in bringing you into this position; settle with him'. It is therefore clear that it is not open to the accused-Respondent in the present case to contend that merely because he was arrested and the liquor was seized by P.W. 1 a person not authorised by the law to do it (assuming the arrest and seizure were illegal, the court had no jurisdiction to try for the offence and the trial had been vitiated. If in fact he had any grievance against any illegal arrest or seizure, it was open to him to take such action as is available in law against the concerned party. We are, however, concerned only with the trial itself. In this connection a case reported in H.N. Rishbud v. State of Delhi AIR 1950 S.C. 196 cited by the learned Standing Counsel on behalf of the Appellant, may also be noticed. That was a case under the provisions of Prevention of Corruption Act by which certain designated Officers may were authorised to investigate the case. There the question arose how far the irregularity of an investigation by a person not empowered under that law could affect the subsequent proceedings. Their Lordships, relying upon the aforesaid decision of the Privy Council in AIR 1944 73 (Privy Council) held, that a defect or illegality in the investigation however serious had no direct bearing on the competency of the procedure relating to cognizance or trial and an illegality committed in the course of investigation did not affect the competency or jurisdiction of the Court for trial. The position of law is, therefore, wen settled that an illegal arrest or seizure will not affect the validity of the trial before a competent Court. 8. The next question would be whether any case has been made out against the accused-Respondent u/s 47(a) of the Bihar and Orissa Excise Act. It appears from the evidence that the accused made a confession which was recorded in Ex. 3. The said confession, however, was scribed by one Biswanath Patnaik, Secretary of the Gram Panchayat, who has not been examined in this case. P.W. 8 has said that Ex. It appears from the evidence that the accused made a confession which was recorded in Ex. 3. The said confession, however, was scribed by one Biswanath Patnaik, Secretary of the Gram Panchayat, who has not been examined in this case. P.W. 8 has said that Ex. 3 has not been signed either by the Secretary or by him. In his statement u/s 342, Code of Criminal Procedure the accused appears to have disowned the confessional statement. In view of the fact that the scribe has not been examined and that it has not been signed by P.W. 8 and has been retracted by the accused, I am not prepared to place any reliance on that document. 9. Coming to the question of possession of the liquor by the accused-Respondent, it appears that he was caught red-handed while offering the liquor in a glass tumbler (M.O. 11) to P.W. 2. P.Ws. 1, 2, 3 and 4 have all deposed about the fact of the accused being in possession of the said liquor. From the evidence of P.W. 1 it appears that as soon as the accused offered the liquor in a glass tumbler to P.W. 2 he snatched away the tumbler with the liquor from the hand of the accused and took the accused with the liquor to the Gram Panchayat Office. P.W. 2 states that he was depicted to make a test purchase of liquor from the accused alid as soon aft the accused brought one dram of liquor in a glass tumbler from inside of his house P.W. 1 Rnatched the tumbler with the liquor from his hand. It appears from the evidence of this witness that he never takes liquor and was agreeable to make a test purchase. P.Ws. 3 and 4 who followed P.W. 2 have also deposed that they were following P.W. 2 at a very short distance and saw the accused offering liquor in a glass tumbler to P.W. 2 when P.W. 1 snatched away the glass tumbler with the liquor and brought the accused with the liquor to the Gram Panchayat Office. Nothing was suggested as to why these witnesses would depose falsely against the accused. They appear to be respectable persons of the locality and some of them are members of some public bodies. There is therefore no reason to discard their evidence. Nothing was suggested as to why these witnesses would depose falsely against the accused. They appear to be respectable persons of the locality and some of them are members of some public bodies. There is therefore no reason to discard their evidence. Their evidence therefore sufficiently proves beyond doubt that the accused-Respondent was in possession of the liquor which he offered to P.W. 2 when it was seized from his hand by P.W. 1 and subsequently produced before the Court. The learned magistrate further observed that the contents in the glass tumbler which was kept in the custody of P.W. 8 for the whole of the night had the chance of beingadulterated or substituted. He thereforefelt some doubt as to the fact whether the very liquor that was produced before the Court was the same that was seized from the accused. No doubt such an inference may be possible in some cases. But so far as this case is concerned, the witnesses have categorically stated that they found the contents of the glass tumbler to be liquor at the time of its seizure from the possession of the accused. Nothing was brought out from their evidence to suggest that they have falsely deposed that the accused was in possession of liquor instead of some other liquid substance. No doubt P.Ws. 1 to 4 are more or less members of the raiding party who were responsible for making the trap to catch the accused with the laudable object of effecting prohibition in their village. It cannot be laid down as a proposition of law that the evidence of a raiding party is necessarily to be discarded in the absence of any independent corroboration. If any witness is a partisan or an interested person and is concerned in the success of the trial his evidence must be tested in the same way as any other interested witness by taking into consideration the various tests which may vary from case to case. In the present case, however, as I have said above, nothing was suggested to discard their evidence. In view of the aforesaid discussions I am of opinion that the prosecution has proved its case beyond all doubts against the accused-Respondent 47(a) of the Bihar and Orissa Excise Act. 10. In the present case, however, as I have said above, nothing was suggested to discard their evidence. In view of the aforesaid discussions I am of opinion that the prosecution has proved its case beyond all doubts against the accused-Respondent 47(a) of the Bihar and Orissa Excise Act. 10. The result therefore is that the order of acquittal is set aside and the accused-Respondent Gadei Sahu is convicted u/s 47(a) of the Bihar and Orissa Excise Act. There is no evidence, however, that there was any previous conviction passed against the Respondent. It is already more than two years when the offence was committed. I would, therefore, instead of imposing any substantive sentence of imprisonment, sentence him to pay a fine of Rs. 200/-(rupees two hundred only), in default, to undergo rigorous imprisonment for one month. The Government Appeal is accordingly allowed. Final Result : Allowed