Judgment :- 1. This appeal by the State is against an order of acquittal. There are four accused and the charge against them is that they were manufacturing illicit arrack in the kitchen of house No. T.C. 511 of the Chalai Ward. Accused 1 is said to be the owner of the house and in possession of it, accused 4 the Vaidian to whom a licence was granted for the manufacture of medicines and toilet preparations containing alcohol and accused 2 and 3 to be the employees of the Lalitha Pharmacy run by accused 1 and 4. Accused 1 asserted that the house did not belong to him and that he was permanently residing at Varkalai. Accused 3 denied having gone to the Vaidia Sala at all. Accused 2 denied that he was a servant in the pharmacy and stated that he had been there to see the Vaidian. Accused 4 stated that he was permanently residing at Chavarot and used to visit the Vaidia Sala only occasionally. He denied having had any knowledge of the alleged preparation of illicit arrack. 2. Pws.1 and 2, Excise Officers who were among those conducted the search and effected the recovery of the arrack and wash were alone examined. No evidence was produced to prove that accused 1 had anything to do with the house and there is nothing to indicate that the distillation was done with the knowledge of accused 4 who was not admittedly living in the house. Pws.1 and 2 gave evidence that they actually found accused 2 engaged in the work of distillation and accused 3 running out of the kitchen and escaping through the western door into the western lane. They have no case that they were previously acquainted with accused 3 and no identification parade was held. Dw.1 is an advocate who was deputed to prepare a mahazar to note whether there was a lane to the west. His evidence and Ext. D-1 mahazar prepared by him prove that there is a granite wall 5 feet in height on the western side and there is neither a lane to the west of it nor any opening in the wall on the western side. There is the evidence of Pws.1 & 2 that accused 2 was actually found in the act of distillation and he admits his presence in the Vaidia Sala. 3. There is the evidence of Pws.1 & 2 that accused 2 was actually found in the act of distillation and he admits his presence in the Vaidia Sala. 3. The main grievance of the State Prosecutor is that the learned Magistrate was not justified in drawing an adverse inference from the non-examination of the Assistant Excise Commissioner who headed the search party and the independent attestors to the mahazar after having dismissed an application moved by the Prosecutor for summoning the Assistant Excise Commissioner and in the face of the prayer in the charge sheet that the search witnesses were to be summoned. It is true that a belated prayer was made by the prosecutor to have the Assistant Commissioner summoned which was disallowed for the same reason. There is also no good faith in the suggestion that the court failed to summon the other witnesses cited in the charge-sheet when the prosecution did not deem it necessary to seek the aid of the court to get at them when they moved for summoning the Assistant Commissioner. 4. As observed earlier there is no evidence to connect accused 1, 3 and 4 with the crime and no useful purpose will be served by re-opening the case against the second accused in the face of the grave irregularities committed by the Excise Party in conducting the search and in forwarding the search list and the articles recovered to the Magistrate concerned. S.165 of the Criminal Procedure Code lays down various steps to be followed in making a search. The recording of reasons is an important step in the matter of search and to ignore it is to ignore the material part of the provisions governing the searches. If that can be ignored it cannot be said that the search is carried out in accordance with the provisions of the Criminal Procedure Code; it would be a search made in contravention of the provisions of the Code." Vide State of Rajasthan v. Rehman - (1960) I KLR.153. It is argued by the State Prosecutor that so long as the reasons are stated in the preamble to the mahazar itself the failure to prepare a separate record cannot invalidate the search. It is argued by the State Prosecutor that so long as the reasons are stated in the preamble to the mahazar itself the failure to prepare a separate record cannot invalidate the search. Even if it is so, in this case there is the further difficulty that the mahazar itself and the articles recovered were forwarded to the court only two months later on 19-5-1961 along with the charge-sheet. This is in contravention of the direction contained in Clause.5 of S.165 that a copy of the record made under S.165 (1) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence. 5. It is a serious case where illicit distillation of arrack appears to have been going on in the heart of the City of Trivandrum on a pretty large scale which though promptly detected by responsible officers of the Excise Department has become infructuous due to the failure of the officers to conduct the search in accordance with the provisions of the Criminal Procedure Code and the failure of the prosecutor to lead the necessary evidence. I am constrained to uphold the order of acquittal since no useful purpose will be served by re-opening the case at this stage. The appeal is hence dismissed. Dismissed.