JUDGMENT 1. - This State appeal is directed against the judgment dated January 23, 1980 passed by Judicial Magistrate No, 1, Jodhpur under which, the learned Magistrate acquitted the accused-respondent on the basis of a judgment of their Lordships of the Supreme Court in K. L. Subayya v. State of Karnataka ( AIR 1979 SC 711 ). 2. It appears that leave to appeal was granted on the basis of State v. Shrinarain (ILR 12 Raj. 815) . 3. On January 10, 1976 at 8.30 p.m., the shop of the the accused respondent Poonamchand situated in Soorsagar was inspected by the Station House Officer and four bottles of liquor and one quarter bottle of liquor (Gulab) were found in possession of the accused. Before taking the search, it appears that the S.H.O. Jalam Singh PW 8 did not comply with Section 47 of the Rajasthan Excise Act, 1956 (hereinafter referred to as `the Act'). The learned Magistrate, placing reliance on the above referred authority of the Supreme Court, acquitted the accused. 4. I am of the opinion that the acquittal by the learned Magistrate was correct. Under Section 47 of the Act, if an officer of the Excise Department, not below such rank as the State Government may prescribe, has reason to believe that an offence punishable under the Act has been, 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 concealing the evidence of the offence, he may,, at any time by day or night, enter in such place, but before entering such place, he must record the grounds of his belief as aforesaid. In the instant case, it appears that Jalamsingh PW 8, the then S. H. O. Sadar Kotwali, Jodhpur, on receiving an information that the accused was surreptitiously dealing in the sale of liquor without licence, after being accompanied with the constables, took search of the shop of the accused-respondent and found illicit liquor in the quantity as already referred to above. But, he did not record the grounds of his belief as required under Section 47 of the Excise Act and without a warrant, proceeded to take the search of the shop. But, he did not record the grounds of his belief as required under Section 47 of the Excise Act and without a warrant, proceeded to take the search of the shop. This Court, in Shrinarain's case (supra), has observed that where it is established beyond any doubt that illicit liquor was recovered from the house of the accused, the irregularity or the illegality in the search could not dislodge the recovery. The recovery could not be vitiated because of the illegality or irregularity in the conduct of the search. In taking that view, this court relied on Kedarnath v. Prahalad Rai, ( AIR 1960 SC 213 ). I have gone through this authority. Under Section 165 of the Code of Criminal Procedure, the recording of the reasons is an important step and in that case, no reasons were recorded. So, it was observed by their Lordships, that Section 165 of the 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 is ignored, it cannot be said that the search is carried out in accordance with the provisions of the Code, instead, it would be a search made in contravention of the provisions of the Code. 5. An attempt was made to argue before their Lordships of the Supreme Court in view of the aforesaid authority that the search in contravention of Section 165 of the Code of Criminal Procedure was only an irregularity and the accused had no right to prevent the officer from making the search. Their Lordships refused to allow that submission to be raised because that contention had not been raised till then. In Radhakishan v. State of U.P., (1963(1) Cr. L. J. 809 ), a view has been taken that where the provisions of Section 103 and 165 of the Code of Criminal Procedure are contravened, the search can be resisted by a person whose premises are sought to be searched. It may also be that because of the illegality of the search, the court may be inclined to examine the evidence regarding the seizure but beyond these two consequences, no further consequence ensues and the seizure of the article is not vitiated. It may also be that because of the illegality of the search, the court may be inclined to examine the evidence regarding the seizure but beyond these two consequences, no further consequence ensues and the seizure of the article is not vitiated. Recently, in Subayya's case (supra), which was a case under the Mysore Excise Act, Section 54 of which, like Section 47 of our Act required recording the grounds of the belief before taking search without warrant, their Lordships observed that Sections 53 and 54 of the Mysore Excise Act contained valuable safeguards for the liberty of the citizens in order to protect them from ill founded or frivolous prosecution or harassment. In that case, the Inspector who had searched the car of the accused had not made any record of any grounds on the basis of which, he had a reasonable belief that the offence under the Act was being committed before proceeding to search the car. It was held that as Section 54 was not -complied with, it rendered the entire search without warrant without jurisdiction and it vitiated the conviction under Section 34 of the Mysore Excise Act. 6. The learned Magistrate, therefore, was right in acquitting the accused -on the basis of Subayya's case referred to supra. 7. There is no force in this State appeal and it is hereby dismissed. Sd/- M.B. Sharma, J.State Appeal dismissed. *******