JUDGMENT H.C.P. Tripathi, J. - The four applicants were convicted by a Magistrate First Class, Unnao, Parbhu u/S. 224, IPC and the rest u/Ss. 225/149 and 147, IPC. Parbhu was sentenced to 18 months rigorous imprisonment and a fine of Rs. 100/- and the rest were sentenced to one year's rigorous imprisonment u/S. 147 and to 18 months rigorous imprisonment and a fine of Rs. 100/- u/S. 225/149, IPC. In default of payment of fine they were to undergo six months further rigorous imprisonment. The sentences were directed to run concurrently. On appeal the learned First Additional Sessions Judge, Unnao, upheld the conviction and sentence of the applicants; hence this revision. 2. According to the prosecution case, Excise Inspector Mohammad Malik accompanied by a number of peons raided the house of Parbhu in Village Gangaghat and conducted its search. He recovered one bottle of illicit liquor from the house, arrested Parbhu and handed him over to the custody of his peon Brahmanand. The party came out of the house and sat under a Neem tree where the Excise Inspector busied himself with preparing the memo of the recovery of the articles. Parbhu, it appears, raised an alarm and the other three applicants along with some others responded to his call. They tried to rescue Parbhu. A fight ensued in which they wielded lathis causing a number of simple injuries to the peons. Parbhu and his rescuers also received injuries during the incident as is evident from the injury reports on the record. Ultimately the villagers succeeded in rescuing Parbhu from the custody of the Excise staff, but Shambhu Dayal was arrested at the spot and taken to the police station where a report was lodged by Brahmanand which ultimately led to their prosecution and conviction as has been stated above. The applicants have denied the prosecution case and the recovery of illicit liquor from the house of Parbhu. According to them they had been falsely implicated in the case and that Shambhu Dayal had not been arrested at the spot. They also alleged that Shambhu Dayal's hand and right knee had been fractured. 3. The applicants have denied the prosecution case and the recovery of illicit liquor from the house of Parbhu. According to them they had been falsely implicated in the case and that Shambhu Dayal had not been arrested at the spot. They also alleged that Shambhu Dayal's hand and right knee had been fractured. 3. The prosecution case was supported by the four Excise Peons Brahmanand, Mohammad Yaseen, Mohammad Abbas and Madan Mohan who had received injuries during the incident and by Excise Inspector Mohammad Malik (PW 9) who had conducted the search and Sheo Balak, Ganga Din, Prag Narain and Abhul Salam, residents of the village. Doctor S. N. Tandon (PW 1) proved the injuries received by the Excise Peons involved in the incident. The applicants examined Smt. Rampati, wife of Parbhu to prove that the incident was sparked off when some of the Excise Peons unauthorizedly entered her house in the absence of her husband and tried to misbehave with her. The courts below rejected the defence set out by the applicants as unreliable and placing reliance on the testimony furnished by the prosecution witnesses referred to above recorded their conviction. 4. Learned counsel for the applicants has urged that as the salutary provisions of the CrPC and Excise Act in respect of search had not been followed by the search party, the entire search was illegal ab initio and, therefore, the Excise staff has to thank itself if they came in clash with Parbhu and his helpers of the village and no conviction can be recorded of the applicants. I find force in this contention. 5. Sri Mohammad Malik (PW 9) Excise Inspector admitted that before taking the search he neither obtained a search warrant nor did he put on record that the search warrant could not have been obtained without affording the offender an opportunity to escape or of concealing evidence of the offence. 6. Ss. 52, 53 and 54 of the UP Excise Act which are relevant to the question in controversy read as follows : "52. 6. Ss. 52, 53 and 54 of the UP Excise Act which are relevant to the question in controversy read as follows : "52. Power of Collector or Magistrate to issue a search warrant - If a Collector or a Magistrate, upon information obtained, has reason to believe that an offence punishable under Section 60, Section 62, Section 63 or Section 65 has been or is likely to be committed, he may issue a warrant for the search for any intoxicant, materials, still, utensil, implement or apparatus in respect of which the alleged offence has been or is likely to be committed. 53. Power of Collector or officer of the Executive Department to search without warrant - (1) Whenever a Collector or an officer of the Excise Department not below such rank as the State Government may prescribe or a police officer not below the rank of an officer in charge of a police station has reason to believe that an offence punishable under Section 60, Section 61, Section 62, Section 63 or Section 65 has been, or is being or is likely to be committed in any place, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, at any time, by day or night, enter and search such place : Provided that any officer other than a Collector taking action under this subsection shall before entering such place record the grounds of his belief as aforesaid. (2) Further power of seizure, detention, search and arrest - The Collector or other officer as aforesaid may seize anything found in such place which he has reason to believe to confiscation under this Act, and may detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid. 54. Procedure relating to arrests, searches, etc. 54. Procedure relating to arrests, searches, etc. - The provision of the Code of Criminal Procedure, 1898, relating to arrests, searches, search-warrants, production of persons arrested and investigation into offences shall be held to be applicable, so far as may be to all actions taken in these respects under this act: Provided that an offence punishable under Section 60, Section 61, Section 62 or Section 65 may be investigated into without the order of a Magistrate, and that any warrant issued by the Collector under Section 51 or Section 52 may be executed by an officer selected by the Collector for that purpose. It will be noticed that u/S. 53 it is incumbent on an Excise Officer before conducting a search without warrant to put on record in writing his satisfaction that any attempt to obtain warrant of search will result in either the escape of the culprit or the contraband article. S. 54 makes the provisions of the Cr.PC relating to arrest, search, search warrant etc. applicable to the searches conducted under the provisions of the UP Excise Act. Sec. 165 of the Cr.PC which is relevant to a search of the present kind inter alia provides that where a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station. It is, therefore, obvious that before taking the search of the house either a search warrant has to be obtained from a Magistrate as provided under the Code or it has to be recorded in writing by the police officer concerned that the attempt to obtain the warrant will result in undue delay. Therefore, a case where neither the search warrant has been obtained nor such a satisfaction has been recorded in writing by the searching officer the search conducted by him is illegal. 7. Therefore, a case where neither the search warrant has been obtained nor such a satisfaction has been recorded in writing by the searching officer the search conducted by him is illegal. 7. In State of Rajasthan v. Rehman (A.I.R. 1960 SC 210) which was a case under the Central Excises and Salt Tax Act, Subba Rao, J. (as he then was) delivering the judgment of the Supreme Court inter alia observed :- "As search is a process exceedingly arbitrary in character, stringent statutory conditions are imposed on the exercise of the power.. There is also no reason why conditions should be imposed in the matter of a search by the police officer u/S. 165 of the Code, but no such safeguard need be provided in the case of a search by the excise officer under the Rules. We think that the legislature, by stating in Sec. 18 of the Act that the searches under the Act and the Rules shall be carried out in accordance with the provisions of the Code relating to searches, clearly indicated that the appropriate provisions of the Code shall govern searches authorised under the Act and the Rules. We, therefore, hold that the provisions of Sec. 165 of the Code must be followed in the matter of searches u/R. 201 of the Rules." Under the United Provinces Excise Act (Act IV of 1910) R. 281, which deals with arrests, searches, challans and evidence, inter alia provides as follows: "281............................... (a)............................. (b).............................. (c) Search-warrant in Form D-18 should be obtained in all cases as provided for in Sec. 52 of the Excise Act. In cases where a search warrant cannot be obtained without affording the offender an opportunity to escape or of concealing evidence of the offence, search may be made without warrant, but the grounds of belief should be recorded in the form of a memorandum before entering the place to be searched." 8. In this case neither a search warrant had been obtained as provided u/S. 52 of the Act nor the grounds to believe that attempt to obtain search warrant would have afforded the offender an opportunity to escape or of concealing evidence of the offence had been recorded in memorandum as envisaged u/R. 281 of the Rules. In this case neither a search warrant had been obtained as provided u/S. 52 of the Act nor the grounds to believe that attempt to obtain search warrant would have afforded the offender an opportunity to escape or of concealing evidence of the offence had been recorded in memorandum as envisaged u/R. 281 of the Rules. That being so, there can be no doubt that the search was absolutely illegal and the entire proceedings based on an illegal (search) are void ab initio. Parbhu was kept under an illegal restraint because the Excise Inspector had no authority either to arrest or keep him under^custody. If Parbhu , or some of the villagers tried to rescue him,from an illegal custody they committed no offence. It is true that in the case some of the Excise Peons have received injuries. Moreover, the Excise staff is itself responsible for coming to this impasse. 9. In the result this revision is allowed. The conviction and sentence of the applicants are set aside. Fine, if paid, shall be refunded to them.