JUDGMENT 1. - The instant criminal revision is directed against the judgment dated 3.9.85 passed by learned Sessions Judge, Jalore in Cr. Appeal No. 93/82 upholding the conviction but modifying the sentence and substituting for probation passed by learned Munsif and Judicial Magistrate, Jalore by his judgment dated 15.10.82 in Cr. Original Case No. 199/77 under Section 4(2) of the Rajasthan Prohibition Act, 1969. 2. The accused-petitioners in the instant case were tried for an offence under Section 4(2) of the Rajasthan Prohibition Act, 1969 (hereinafter referred as 'the Act') on the allegation that on a search being made from Jeep No. RJN 479 at Jalore near Ahore crossing 12 Kattas' containing liquor bottles were seized. It is alleged that PW-1 Sabal Singh, Head Constable (Traffic Incharge) posted at Jalore on 18.4.81 on a tip from a Mukhbir accompanied by'Lakh Singh and Ram Singh Constables laid a trap at the railway crossing, Ahore and stopped the aforesaid jeep at 4.30 a.m. coming from the direction of Ahore. It is also alleged that Moda was driving the said jeep. The said jeep was stopped by the aforesaid against judgment dated 3.9.85 passed by Sessions Judge, Jalore constables and while, enquiring from Shri Moola, one of the occupants Moda ran away. All the four accused-persons were said to be sitting on the front seat. Two persons were sitting on the rear seat but they too ran away, from the scene of occurrence. Oo search being made, 12 Kattas', 11 containing 20 bottles each and 12th containing 19 bottles of country liquor were seized. Thereafter it is said that the jeep was brought to the police station and the FIR Ex.P/1 was lodged and so also recovered articles were handed over to the SHO and one bottle from each 'Katta' was taken as a sample for the purpose of chemical examination. 3. After usual investigation, PW-4 Narpat Singh, Investigating Officer submitted a challan against all the accused-petitioners. At the trial the prosecution examined as many as 9 witnesses in support of prosecution story. The accused-petitioners pleaded not guilty. The learned trial Magistrate accepted the prosecution case and found the accused-petitioners guilty for an offence under Section 4(2) of the Act and'sentenced each of them to two years' SI together with a fine of Rs. 2,000/- and in default to further undergo three months SI. 4. The accused-petitioners pleaded not guilty. The learned trial Magistrate accepted the prosecution case and found the accused-petitioners guilty for an offence under Section 4(2) of the Act and'sentenced each of them to two years' SI together with a fine of Rs. 2,000/- and in default to further undergo three months SI. 4. On appeal, the learned Sessions Judge, Jalore affirmed the conviction but released the accused-petitioners on probation. 5. Aggrieved against the concurrent finding of guilt recorded by both the courts below, the instant revision has came up for hearing before me: 6. The learned counsel for the petitioners Shri Sandeep Mehta urged before me that in the instant case it is admitted that PW-1 Sabal Singh, Head Constable (Traffic incharge) posted at Jalore on 18.4.81 who searched the jeep No. RJN-479 at Jalore near Ahore crossing has not made any record of any ground on the basis of which he has a reasonable belief with an offence under the Act was being committed before proceeding to search the aforesaid jeep and thus the provisions of Section 42 of the Act were not at all complied with. According to the learned counsel for the accused-petitioners non-compliance of the mandatory provisions contemplated under Section 42 of the Act renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. The learned counsel in support of his aforesaid contention invited my attention to the notification issued by the Rajasthan Government in exercise of its power conferred under section 42 of the Act (Rajasthan Ordinance 5 of 1969) read with Section 43 thereof, the State Government empowers the following officers to exercise within their respective jurisdiction powers under the said Section:- (i) every prohibition officer not below the rank of a inspector or petrolling officer, (ii) every officer of the police department not below the rank of sub-inspector of police, and (iii) every officer of the revenue department not below the rank of Naib Tehsildar. , It would be expedient to reproduce Section 42 of the Rajasthan Prohibition Act, 1969 in. , It would be expedient to reproduce Section 42 of the Rajasthan Prohibition Act, 1969 in. extenso as under:- "42.-Power of seizure in open or public places and of detention, search arrest.-Any Prohibition Officer, any officer of the police or revenue department not below such rank and subject to such restrictions as may be prescribed, and any other person authorised in that behalf by the State Govt., may (a) seize, in any open or public place, or in transit, any liquor, or other article which he has 'reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter-III; (b) detain and search any person, vessel, vehicle animal, package or covering upon whom, or in or upon whom he may have reasonable cause to suspect that any liquor or other article liable to confiscation under this Act is kept or concealed; and (c) arrest without warrant any person found committing an offence punishable under Section 4 or Section 5 of this Act: Provided that if the officer or person making the arrest under this section be not empowered under Section 38 to admit to bail, the person arrested shall be forthwith forwarded to the officer-in-charge of the nearest police station or to the nearest Prohibition Officer who is empowered to release on bail, and it shall be the duty of such officer empowered as aforesaid to admit such person to bail, if sufficient bail be tendered for his appearance before a police or Prohibition Officer or a Magistrate, as the case may be." 7. Learned Public Prosecutor Shri DR Bohra refuted the aforesaid argument and supported the judgment given by both the courts below. According to him in the instant case Section 42 of the Act is not applicable as argued by the learned counsel for the accused-petitioners. 8. I have heard learned counsel for the parties and perused the judgments given by both the courts below and given my thoughtful consideration to the rival submission raised at the Bar. 9. A close scrutiny of the judgments given by both the courts below reveal that both the courts below have placed reliance on Section 39 of the Act which is not applicable in the present case. 9. A close scrutiny of the judgments given by both the courts below reveal that both the courts below have placed reliance on Section 39 of the Act which is not applicable in the present case. As a matter of fact Section 39 of the Act is applicable regarding power of entry, search, seizure and arrest without warrant in a 'place' when the officers authorised in this behalf has reason to believe that an offence in respect of any liquor punishable under chapter III has been committed and that the delay occasioned by obtaining a search warrant under Section 37 will prevent the execution thereof, he may after recording the grounds of his belief any time by day or by night enter and search in any 'place' and may seize anything found therein which he has reason to believe to be liable to confiscation under the Act and may detain and search. If he thinks proper arrest any person found in such a 'place' whom he has reason to be liable to confiscation under the said Act. 10. A close examination of Section 39 of the Act does not include a vessel, vehicle, animal. Thus Section 39 can be pressed into service in a contingency where the statute enjoins that apart from other authority, a sub-inspector of police or officer-in- charge of police station before searching 'place' must obtain a warrant from the Magistrate under Section 37 of the Act but in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate, he can press into service section 39 of the Act. Section 39 of the Act reads as under:- "39.-Power of entry, search seizure and arrest without warrant- Whenever the Prohibition Commissioner, any Prohibition Officer not below such rank as the State Govt. Section 39 of the Act reads as under:- "39.-Power of entry, search seizure and arrest without warrant- Whenever the Prohibition Commissioner, any Prohibition Officer not below such rank as the State Govt. may determine, any police officer not below the rank of a Sub-Inspector, any officer-in-charge of a police station, or any other officer authorised by the State Government in this behalf, has reason to believe that an offence in respect of any liquor punishable under Chapter III has been committed and that the delay occasioned by obtaining a search warrant under section 37 will prevent the execution thereof, he may after recording the grounds of his behalf any time, by day or by night, enter and search any place, and may seize anything found therein which he has reason to believe, to be liable to confiscation under this Act, any may detain any search and, if he thinks proper, arrest any person found in such place whom he has reason to be liable to confiscation under this Act : Provided that every person arrested under this section shall be admitted to bail by such officer as aforesaid, if sufficient bail be tendered for his appearance either before a Magistrate or before a police or Prohibition Officer, as the case my be." 11. From the persual of the Sections 39 and 42 of the Act it is evident that the word 'place' used under section 39 does not apply in the instant case where a search was made not of a 'place' but of a vehicle. Therefore, both the courts below have fallen into an error in placing reliance in the instant case under section 39 of the Act instead of applying under Section 42 of the Act coupled with the notification dated 23.7.69 issued by the State Government in exercise of its power under section 42 of the said Act. After comparing both the Sections mentioned above, learned Public Prosecutor admitted that both the courts below have wrongly palced reliance on Section 39 instead of Section 42 read with notification dated 23.7.69. 12. After comparing both the Sections mentioned above, learned Public Prosecutor admitted that both the courts below have wrongly palced reliance on Section 39 instead of Section 42 read with notification dated 23.7.69. 12. The second limb of the argument of the learned counsel for the accused-petitioners is that in the present case it is admitted that PW-1 Sabal Singh who made the search of the vehicle alongwith other two police constables Ram Singh and Lakh Singh were not authorised by the State Government either under Section 39 or under Section 42 of the Act to make a search or seizure of liquor in question. In aforesaid two sections a member of police force constituted by the State under section 2 of the Police Act, 1961 no police officer below the rank of Sub-Inspector can make search or seizure either of place or of a vehicle under both the sections. In the present case admittedly PW-1 Sabal Singh was only head constable (traffic incharge), therefore, he alongwith other two constables namely Ram Singh and Lakh Singh were not authorised to make search and seizure of the vehicle in question. 13. I have examined FIR Ex.P/1 and the statement of PW-1 Sabal Singh which leads towards and irresistable conclusion that PW-1 Sabal Singh alongwith other two constables had made a search of the vehicle for which none of them were entitled to do so. In my considered opinion the search and seizure made from the vehicle in question by aforesaid three constables was perse illegal and without jurisdiction. Both the courts below have not properly addressed themselves towards the FIR Ex.P/1 as well as the statement of PW-1 Sabal Singh who had categorically stated that it is he and he alone alongwith two other constables named above had made search and seizure of the vehicle carrying 12 kattas' containing liquor bottles. 14. This, therefore, renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. I feel that both the sections 39 and 42 contained valuable safe-guards for liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harrassment. I am fully satisfied that there has been a direct non-compliance of the provisions of Section 42 of the Rajasthan Prohibition Act which render the search completely without jurisdiction. 15. Courts of law are not expected to go behind the wisdom of legislature. I am fully satisfied that there has been a direct non-compliance of the provisions of Section 42 of the Rajasthan Prohibition Act which render the search completely without jurisdiction. 15. Courts of law are not expected to go behind the wisdom of legislature. What a court has to do is to see of these words and give effect to them regardless of the consequence that my ensue. If language of Sections 39 and 42 of Rajasthan Prohibition Act is plain the fact that the consequence of giving effect of said sections may lead to some inconvenience to the prosecution is to be ignored. The legislature may have unconsciously or without sufficient fore-sight may have enacted Sections 39 and 42 of the said Act but if so it must be left to the legislature to correct its error. It has been brought to my notice at the Bar that said enactment is abrogated by State Legislature.In the result, the revision is allowed and conviction and sentence passed by the learned Sessions Judge, Jalore dated 3.9.85 and the conviction and sentence passed by the learned Munsif and Judicial Magistrate Jalore dated 15.10.82 are hereby set aside and the accused-petitioners are acquitted of the charges framed against them.Revision allowed. *******