JUDGMENT : B.L. Hansaria, C.J. - This revision which is directed against the conviction of the Petitioner u/s 47(a) of the Bihar and Orissa Excise Act, 1915 (shortly, 'the Act') came up for hearing before a learned single Judge of this Court, and he, having noted divergence of views expressed in certain decisions of this Court (infra) on the question whether violation of the provision of Section 74 of the Act would render the conviction illegal (which is the main point involved in the revision), deemed it necessary to refer the case for decision by a larger Bench. The learned Judge also felt the necessity to bring to the fore the distinction between Sections 70 and 74 of the Act. 2. Before we express our views on the aforesaid two aspects of the case, let the broad facts and the relevant provisions of the law be noted. What had happened was that on 31-5-1982 the Excise staff, having got reliable information that the Petitioner had stored illicit liquor and was selling the same raided and searched his house and recovered 18.5 liters of illicit liquor? The defence was one of denial. In support of its case, the prosecution examined five witnesses and the accused also produced one witness. The learned trial Court on appreciation of the evidence on record was satisfied about the guilt of the accused and convicted him u/s 47(a) of the Act and sentenced him to undergo rigorous imprisonment for six months and pay a fine of Rs. 500/- and, on default, to undergo simple imprisonment for one month more. On appeal being preferred the same has been dismissed. Hence this revision. 3. A perusal of the impugned judgment shows that the main point urged was that the Petitioner was entitled to acquittal because of violation of the mandatory requirement of recording of reasons before conducting search as required by Section 74 of the Act. This section reads as below: "Power to search without "a warrant: Whenever any Excise Officer not below such rank as the State Government may, by notification, prescribe, has reason to believe that an offence punishable u/s 47, Section 49, Section 55, or Section 56 has been; is being, or is likely to be, committed or abetted, and that a search-warrant cannot be obtained without affording the offender an opportunity of escaping or of concealing evidence of the offence. he may, - after recording the grounds of his belief, at any time by day or night enter and search any place, and may seize anything round therein which he has reason to believe to be liable 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 have committed or abetted any such offence as aforesaid. (Emphasis supplied.) Another cognate section relating to search is Section 70 which is in the following language: Power to arrest without warrant, to seize articles liable to confiscation, and to make searches: Any of the following persons, namely: (a) any officer of the Excise, Police, Salt, Customs or Land-revenue Department, or (b) any person empowered by the State Government in this behalf, by notification may, subject to any restrictions prescribed by the State Government by rule made u/s 89: (i) arrest without warrant any person found committing an offence punishable u/s 47, Section 49, Section 55, or Section 56 ; and (ii) seize and detain any article which he has reason to believe to be liable to confiscation, under this Act or any other law for the time being in force relating to the excise-revenue; and (iii) detain and search any person upon whom, and any vessel, raft, vehicle, animal, package, receptacle or covering in or upon which, he may have reasonable cause to suspect any such article to be. 4. One of the points for determination by this Bench is as to what would be the effect if a search is conducted as permitted by Section 74 of the Act without recording the grounds of belief required by the section. In Krushnachandra v. State, 58 (1984) C.L.T. 210, which was a case in which conviction u/s 353, I.P.C. was challenged, it was held that illegality in search following non-recording of the grounds of belief as required by Section 74 of the Act would make the search illegal and would vitiate the entire proceeding. This view was taken by relying on K.L. Subbayya Vs. State of Karnataka. Reference was also made to State v. Raheman, State Vs. Rehman which was also a case challenging conviction u/s 353, I.P.C. (The Rajasthan High Court's view was subsequently affirmed in The State of Rajasthan Vs. Rehman, ). 5. This view was taken by relying on K.L. Subbayya Vs. State of Karnataka. Reference was also made to State v. Raheman, State Vs. Rehman which was also a case challenging conviction u/s 353, I.P.C. (The Rajasthan High Court's view was subsequently affirmed in The State of Rajasthan Vs. Rehman, ). 5. The decision in Krushnachandra was cited with approval in Kashinath v. State of Orissa, 60 (1985) C.L.T. 510 in which the conviction of the Petitioner u/s 47(a) of the Act was set aside, inter alia, on the ground that there was non-compliance of the provisions of Section 74 of the Act because of which the search and seizure became illegal which affected the legality of the conviction also. 6. A contrary view was, however, expressed in Abdul Gaffer v. State of Orissa, 63 (1987) C.L.T. 370, by referring to Bai Radha Vs. The State of Gujarat. It was stated in Abdul Gaffer that in the two earlier decisions of this Court referred above, the decision of the Supreme Court in Bai Radha which is by larger Bench then that of K.L. Subhayya, was not noted. It may be pointed out that in Bai Radha it was held that omission of recording of reasons before search is conducted, held, as was required by the statute with which that case was concerned, would not result in the entire proceeding and the trial becoming illegal. The view taken in Abdul Gaffer was referred with approval in Karpura Senapati v. State, 64 (1987) C.L.T. 763, and Subash Chandra v. State of Orissa, 68 (1989) C.L.T. 648 : (1989) 31 O.J.D. 486: 7. There is thus divergence of views, on the question of untenability of conviction under the Act, because of violation of the requirement of recording of reasons before making search permitted by Section 74 of the Act, in the aforenoted decisions, all of which are by learned single Judge of this Court. The point for examination is which view is tenable. May we say that we are not concerned in this case with the tenability of conviction u/s 353, I.P.C., if the search be illegal. 8. The point for examination is which view is tenable. May we say that we are not concerned in this case with the tenability of conviction u/s 353, I.P.C., if the search be illegal. 8. Before we express our opinion on the aforesaid question, may we state that there is no dispute before us that the present case attracted the provisions of Section 74 of the Act inasmuch as this section deals with the power to search "any place"; and the search in the present case was of the house of the Petitioner. As against this, Section 70 of the Act deals with searches of any person upon whom, and any vessel, raft, vehicle, animal, package, receptacle or covering in or upon which, the concerned officer may have reasonable cause to suspect any such article which attracts the mischief of the Act to be. We are thus of the view that if a search has to be made in a house, it is Section 74 of the Act which would be attracted and in other cases Section 70 of the Act would apply. 9. Let us now examine the question regarding the effect on conviction where requirement of recording of grounds incorporated in Section 74 of the Act is violated while conducting the search. As search is a part of investigation, the point for consideration is whether any irregularity or illegality committed during investigation affects trial. In so far as this aspect is concerned, there are a plethora of decisions of the Apex Court to throw light and we shall start with what was stated in H.N. Rishbud and Inder Singh Vs. The State of Delhi. It was held in that case that on breach of any mandatory provision relating to investigation, result of the trial which follows cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. It was further observed that an illegality committed in course of an investigation does not affect the competence and the jurisdiction of the Court for trial. This was said to be the well settled view. Mention was made in this connection to AIR 1944 73 (Privy Council), and Lumbhardar v. The King, AIR 1950 P.C. 26 . 10. It was further observed that an illegality committed in course of an investigation does not affect the competence and the jurisdiction of the Court for trial. This was said to be the well settled view. Mention was made in this connection to AIR 1944 73 (Privy Council), and Lumbhardar v. The King, AIR 1950 P.C. 26 . 10. In stating the law as above, reference was also made to Section 537 of the old Code of Criminal Procedure (where parallel section in the new Code of Criminal Procedure in 465) which had stated, inter alia, that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity committed before or during trial unless the error, omission or irregularity had in fact occasioned a failure of justice. The aforesaid section would also apply to proceedings under the Act because of what was stated in Section 5(2) of the old Code and is provided in Section 4(2) of the new Code. Observation made in paragraph 6 of Bai Radha (supra) may be seen in this connection. 11. The view expressed in Rishibud was followed in Munna Lal Vs. State of Uttar Pradesh, ; The State of Andhra Pradesh Vs. N. Venugopal and Others, and Khandu Sonu Dhobi and Another Vs. State of Maharashtra, . 12. The selfsame matter came again for examination by the Apex Court in A.C. Sharma Vs. Delhi Administration. It was stated in this case in paragraph 14 that the function of investigation is merely to collect evidence and any irregularity or even illegality in the course of collection of evidence can scarcely be considered by itself to affect the legality of the trial by an otherwise competent Court of the offence so investigated. In taking this view, reference was made to Rishbud's case (supra) and to other decisions referred above. 13. This point came to be reconsidered in State of Maharashtra Vs. Natwarlal Damodardas Soni, which dealt with the question whether search conducted in violation of Section 165, Code of Criminal Procedure will affect the validity of the seizure or the validity of the trial which followed. The question was answered in negative. In doing so, reference was made to Radhakishen v. State of U.P., 1963 Supp. (1) S.C.R. 408, Shyam Lal Sharma, etc. Vs. The question was answered in negative. In doing so, reference was made to Radhakishen v. State of U.P., 1963 Supp. (1) S.C.R. 408, Shyam Lal Sharma, etc. Vs. State of Madhya Pradesh, ; State of Kerala and Others Vs. Alasserry Mohammed and Others, and two decisions of the United States Supreme Court noted in paragraph 13 of the judgment. 14. It would be useful in this connection to refer to Dorik Sah v. State of Bihar, 1975 Criminal Law Journal 865 as in that case also the Patna High Court dealt with a conviction u/s 47(a) of the Act which had been assailed on the ground of violation of Section 74. The learned single Judge who decided the case stated that non-compliance with Section 74 of the Act would not amount to any illegality so as to make the conviction meted out to the Petitioner either unenforceable or without jurisdiction. This view was taken after referring particularly to Radhakishan Vs. State of U.P., in which it was stated as below: ... So far as the alleged illegality of the search is concerned, it is sufficient to say that even assuming that the search was illegal, the seizure of the article is not vitiated. It may be that where the provisions of Sections 103 and 165, Code of Criminal Procedure are contravened, the search could be resisted by the 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 carefully the evidence regarding seizure. But beyond these two consequences no further consequence ensues.... 15. In view of the aforesaid pronouncements, it has to be held that a search conducted in violation of Section 74 of the Act would not vitiate, the trial and the conviction awarded cannot be set aside on this ground. Of course, in such a case the evidence relating to seizure has to be scrutinised more carefully. The question of prejudice to the accused or miscarriage of Justice because of the failure in question on the part of the investigating agency has also to be considered in this regard. The trial would not, however, ipso facto become illegal because of the violation of the safeguard contained in Section 74 of the Act. The question of prejudice to the accused or miscarriage of Justice because of the failure in question on the part of the investigating agency has also to be considered in this regard. The trial would not, however, ipso facto become illegal because of the violation of the safeguard contained in Section 74 of the Act. The contrary view expressed in Subhayya (supra) which was relied upon in Krushnachandra and Kashinath (supra) cannot outweigh what has been stated in this regard in the aforesaid decisions. As to Subhayya, it may be pointed out that it had not noted any other pronouncement of the Supreme Court on the point which had come up for examination in a number of decisions to which reference has been made above; It may also be put on record that our attention has not been invited to any other decision of the Apex Court which has taken the view expressed in Subhayya. 16. Before parting with this aspect of the case, we would, however, like to observe that the investigating agency cannot and ought not to show disregard to the safeguard mentioned in Section 74 of the Act relating to recording of grounds of belief. This is a salutary provision and must be complied with. 17. In view of what has been stated above, the main point urged by Mr. Misra in support of the revision cannot be accepted. The only other contention of the learned Counsel is that the evidence relating to recovery of the liquor from the house of the Petitioner was not clinching. It is urged in this connection that of the 5 prosecution witnesses examined in the case, of whom P.Ws. 1 and 2 were independent witnesses and the rest three officials, P.W. 2 did not support the case of the prosecution at all. As to P.W. 1, it is contended that he had some enmity with the Petitioner. Even if the evidence of these two witnesses be not available to the prosecution to establish its case, the evidence of the three official witnesses cannot be brushed aside. Even a closer scrutiny of the evidence does not permit us to differ with the finding of fact reached by the two Courts below in this regard. No prejudice had also been caused to the Petitioner because of the failure to record the grounds of belief required by Section 74 of the Act. 18. Even a closer scrutiny of the evidence does not permit us to differ with the finding of fact reached by the two Courts below in this regard. No prejudice had also been caused to the Petitioner because of the failure to record the grounds of belief required by Section 74 of the Act. 18. The last submission of the learned Counsel is relatable to the sentence awarded on the Petitioner. Reference to Section 47 of the Act shows that for an offence of the present type, imprisonment for a term of six months and a fine of Rs. 500/- is the minimum. Of course, under the second proviso to the section, for adequate and special reasons, lesser sentence can also be awarded. But then we do not find any adequate and special reasons in the present case to reduce the sentence. There is no material on record to support the submission of Mr. Misra that the Petitioner was only a pawn in the hands of big under-world operators. 19. It has also been urged by Mr. Misra that if this Court be not inclined to reduce the sentence, the Petitioner may be given the benefit under the Probation of Offenders Act and by ordering release of the Petitioner on bond may keep the sentence under suspension. We are not inclined to accept this submission too because the age of the Petitioner when the offence was committed being 30 years, Section 6 of the Probation of Offenders Act has no application. This apart a reference to the trial Court's judgment shows that after perusing the report of the Probation Officer, benefit of this Act was denied by observing that this sort of offence is anti-social in character and is rampant in the society causing serious breach of peace and tranquility. 20. In view of all that has been stated above, we are not in a position to interfere either with the conviction or sentence as awarded. We are, therefore, constrained to dismiss this petition. Though Mr. Misra, has failed in his effort he deserves commendation for the labour undertaken by him in preparing the case and forcefully advancing his submissions. We also put on record our appreciation for the able assistance rendered by the learned Government Advocate in helping us to answer the legal question involved in the case. R.C. Patnaik, J. I agree. Petition dismissed. Final Result : Dismissed