JUDGMENT : B.A. Patil, J. This appeal has been preferred by the appellant-accused being aggrieved by the judgment of conviction and order of sentence passed by the District and Sessions Judge, Koppal in SC No.25/2011 dated 09.01.2012, whereby the accused was acquitted of the offences punishable under Sections 273, 284, 328 of IPC and convicted for the offences punishable under Sections 32 and 34 of Karnataka Excise Act, 1965 (hereinafter called as 'the Act' for short). 2. I have heard the learned counsel for the appellant and learned HCGP for respondent-State. 3. The geneses of the complaint is that on 23.12.2010, complainant received credible information that a person is selling illicit liquor in Hulageri Tanda of Kushtagi Taluka. Immediately, he secured his staff and proceeded towards the spot and on the way he secured two panch witnesses and thereafter they went near the place of incident and started watching, where they noticed that one person was selling the liquor and two persons were taking the same in two glasses. Immediately, they made a raid. The person selling and the persons who were taking drinks ran away from that place in the said lane and at the place of incident, they verified and found three white plastic cans of 10 liters each illicit distilled liquor. The same were seized by drawing a mahazar and a complaint was registered. On the basis of the complaint, after investigation, the charge sheet was filed. Thereafter, the said case was committed to the Court of Sessions after supplying the case papers to the accused under Section 207 of Cr.P.C. The Sessions Court took cognizance and secured presence of the accused and after hearing, charge was prepared and read over to accused. Accused pleaded not guilty and the trial was fixed. 4. In order to prove the case of the prosecution, prosecution has got examined PWs 1 to 5 and got marked Exs.P.1, P.1(a), P-2, P-2(a), P-3 to P-5 and also material objects 1 to 3. After hearing the learned Public Prosecutor and learned counsel for the accused, the impugned order came to be passed. Assailing the legality and correctness of the said judgment, the appellant is before this Court. 5. After hearing the learned Public Prosecutor and learned counsel for the accused, the impugned order came to be passed. Assailing the legality and correctness of the said judgment, the appellant is before this Court. 5. It is the contention of the learned counsel for the appellant that though there were independent witnesses in the said village at the time of raid, no independent witnesses have been examined by the Investigating Officer. It is his further contention that the conviction and sentence passed by the Court below slipped into an error and passed the impugned order. It is further submitted that the evidence of Complainant: PW1 and police constable who has been examined as PW5, is contradictory to each other. PW-1 deposed that near the temple, in front of the house, two persons were selling the liquor, but PW5 has deposed that one person was selling the liquor to two persons inside the house at the time of raid that itself creates doubt in the case of prosecution. 6. He further submitted that the identity of the accused itself is doubtful. When the raiding party went there, the accused is at a distance of more than 20 feet and immediately they ran away from that place but only on verification and questioning the local peoples that the complainant came to know the name of the accused person. If he has not seen properly, then under such circumstances, the Investigating Officer ought to have held the Test Identification Parade as contemplated under the law. Non-holding of the Test Identification Parade is a fatal to the case of the prosecution. He further contended that the prosecution has made out a case that illegal liquor has been seized from the possession of the accused. But, Ex.P5 the property extract is standing in the name of one Basavva Lachamappa Lamani but the name of the accused is Pomappa Lachamappa Pujar, there is no link to show that he is the son of the owner of the said house. It is his further submission that admittedly the said liquor has not been seized from the house, but the said liquor has been seized in front of the house. It is his further submission that admittedly the said liquor has not been seized from the house, but the said liquor has been seized in front of the house. When the said liquor was outside the house then the very credential aspect of the possession itself is involved in issue and the prosecution has not clearly established that who was in possession of the said liquor as at the time of the raid. Without properly appreciating the said aspect, the Court below has erred in coming to the conclusion that the prosecution has proved the guilt of the accused under Sections 32 and 34 of the Act. It is his further submission that PW1 has not specifically stated that he has not obtained the warrant before he made a raid. As per Section 54 of the Act, he has to obtain the warrant from the jurisdictional Magistrate before the raid. If any such contingency is there, he is not having any time to obtain the said warrant, then the same has to be mentioned somewhere in this regard and thereafter he can proceed and seize. In the absence of such material before the Court, there is a violation of Section 54 of the said Act. In order to substantiate his contention he relied upon decision in the case of K.L.SUBBAYYA V/S STATE OF KARNATAKA, (1979) 2 SCC 115 . On these grounds, he prayed to allow the appeal and set aside the impugned judgment of conviction and order of sentence. 7. Per contra, the learned HCGP vehemently argued and submitted that the evidence of PW1 and PW5 clearly goes to show that the accused person was selling the illicit liquor and after seeing them he ran away from the place and near the house, they found three white plastic cans each containing 10 ltrs. of illicit liquor and the same has been seized, that itself is sufficient to draw the presumption under Section 40 of the Act and said fact has also not been denied. It is his further submission that PW5 has identified the accused and the place is also not disputed. In this behalf, the prosecution has also produced Ex.P5 from where the illicit liquor has been seized and the said house belongs to the mother of the accused. It is his further submission that PW5 has identified the accused and the place is also not disputed. In this behalf, the prosecution has also produced Ex.P5 from where the illicit liquor has been seized and the said house belongs to the mother of the accused. It is his further submission that trial Court after considering the material placed on record has come to the conclusion that the accused has committed alleged offence and rightly convicted and there are no good grounds to interfere with the said judgment and impugned order of sentence. On these grounds he prayed to dismiss the appeal. 8. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records. 9. On close reading of the contents of the complaint and other material, there is an allegation that on credible information the raid party went to the place where they noticed that one person was selling the illicit liquor to two persons and after seeing the police they ran away from the place. During the course of the trial, prosecution got examined PW1 to PW5. 10. Pw-1 is PSI and complainant who is the main witness and who made the raid. PW2 is the independent mahazar witness to the proceedings but he has not supported the case of the prosecution and he has been treated as hostile. PW3 is a Police Constable who carried FIR to the jurisdictional Court. PW-4 is the Investigating Officer who has investigated the case and filed the charge sheet as against the accused. PW-5 is another police official who accompanied with PW1 and he has also reiterated the evidence of PW1. 11. As could be seen from the evidence of PW1, in his evidence, he has deposed that he received credible information and he went to the place at about 11.00 a.m. and on the way he secured the panch witnesses. Thereafter, he went along with staff and Panch witnesses near Sevalal temple and there by hiding they started watching and near by one person in front of the house was selling something which is consumable in glass to the general public and they suspected and made a raid and the person who came for taking the drinks and person who was selling the drinks ran away. Inspite of chasing, they did not traced and in the lane they escaped. Inspite of chasing, they did not traced and in the lane they escaped. During the course of cross examination of this witness, he deposed that there were about 5 to 6 persons who were consuming the said liquor and they started running when they were at a distance of 10 feet and he has also deposed that he has collected the name of the accused from the villagers and the persons who were there and he cannot tell the name of those persons. Thereafter, they came and seized the said articles. But, as could be seen from the evidence of PW5, he has reiterated the evidence of PW1 but during the course of cross examination, he has deposed at para No.5 that he saw the accused at a distance of 20 feet and at that time inside the house of the accused, two persons were present and the accused was giving the drinks. On going through the evidence of PW1 and PW5, there is a contradiction about the place of the occurrence of the incident itself. PW1 deposed that it is outside the house and PW5 deposed that it is inside the house. If actually alleged incident has taken place inside the house as deposed by PW5, then PW1 seeing accused persons selling liquor is highly impossible. 12. Be that as it may. Even, it is not the case of the prosecution that earlier they were acquainted with the accused and they were in a position to identify. At one stretch it is deposed that accused is the person who was selling drinks to 5 to 6 persons. If 5 to 6 persons were consuming liquor, then who was selling and who was consuming the drinks is also doubtful in this behalf to identify the accused to hold that he was in possession of the drinks and was selling the illicit liquor. Admittedly, the accused has not been caught red handed when he was selling the said illicit liquor which is prohibited under the said Act. When they were not acquainted with the accused, then under such circumstances, the Investigating Officer ought to have held the Test Identification Parade under Section 9 of Indian Evidence Act. The reasons best known to the Investigating Officer, the said method has not been adopted, which also creates a doubt in the case of the prosecution. 13. When they were not acquainted with the accused, then under such circumstances, the Investigating Officer ought to have held the Test Identification Parade under Section 9 of Indian Evidence Act. The reasons best known to the Investigating Officer, the said method has not been adopted, which also creates a doubt in the case of the prosecution. 13. The learned HCGP drawing the attention of this Court to Section 40 of the Act has contended that there is a presumption until the contrary is proved and presumption has to be drawn in favour of the prosecution. I am not having any difference of opinion with regard to presumption as to commission of the offences punishable under Sections 32 and 34 of the Act. The said presumption has to be drawn only when the proposition of the intoxicant is proved. Hence, the word used is 'possession'. Without proving the 'possession', the presumption under Section 40 of the Act will not be attracted. In that light, the possession has to be proved. Admittedly, in the present case on hand, as per the case of the prosecution, when they conduct the raid, the accused ran away from that place and thereafter they came back to the house, where they noticed that three white plastic cans, each can containing 180 ml of illicit liquor. The same were seized but the said articles were seized in front of the house. In order to establish the fact that the said house belongs to the accused, the prosecution has got marked Ex.P5- property extract. But the said property extract is standing in the name of one Basavva Lachamappa Lamani. Though PW-4 in his evidence has deposed that the said house belongs to the mother of the accused, the name of the accused itself differs. But as per the case of the prosecution, the name of the accused is Pomappa S/o. Lachamappa @ Laxmappa Pujar. The accused belongs to Lamani caste. It also does not tally that it is the accused who is the son of Basavva. If really Basavva is the mother of the accused, then under such circumstances she could have been examined by the Investigating Officer and also she could have been examined before the Court. In what capacity the accused was staying in the said house is also not forthcoming. If really Basavva is the mother of the accused, then under such circumstances she could have been examined by the Investigating Officer and also she could have been examined before the Court. In what capacity the accused was staying in the said house is also not forthcoming. In the absence of such material, it cannot be held that the said liquor has been seized from the possession of the accused-appellant. 14. As per Section 32 of the Act, the penalty for such violation can be imposed only when the possession of the illicit liquor has been proved. If the said articles have been seized in front of the house, then that itself is going to create a doubt that, the accused-appellant was in possession of the illicit liquor. In the case of State of Mysore Vs. Karia, 1973 (2) Mys.L.J. SN 141, it is not only manufacture of illicit liquor and also possession of the illicit liquor is very much necessary in order to attract the provisions of Section 32 of the Act. But there is no material placed on record to show that the accused was in possession of the said premises and he was having a control over the said illicit liquor which was seized in front of the house of one Basavva. In that light also, the prosecution has utterly failed to establish the case in accordance with law. 15. Be that as it may. It is the specific contention of the learned counsel for the appellant that, the provisions of Section 54 of the Act have not been followed. As per Section 54 of the Act, any Inspector before searching a place, must obtain a warrant from the jurisdictional Magistrate. Section 54 of the Act is also a special provision which provides that if there is some contingencies and it is not possible for the Officer concerned to get a warrant from the Magistrate, under such circumstances, the officer who is making search has to make an endorsement to the effect that because of the contingency he was unable to obtain the warrant and thereafter he has made a search. But for the reasons best known to the prosecution, no such evidence has been produced. This proposition of law has also been upheld by the Hon'ble Apex Court in the case of K.L.Subbayya, (supra) at paragraphs 2 to 4 it has been observed as under: "2. But for the reasons best known to the prosecution, no such evidence has been produced. This proposition of law has also been upheld by the Hon'ble Apex Court in the case of K.L.Subbayya, (supra) at paragraphs 2 to 4 it has been observed as under: "2. Thus this section relates to a contingency where the Statute enjoins that any inspector before searching a place must obtain a warrant from the magistrate. Section 54 is a special provision which arises in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate. Section 54 runs thus: "Whenever the Excise Commissioner or a Deputy Commissioner or any police officer not below the rank of an officer in-charge of a police station or any Excise Officer not below such rank as may be prescribed has reason to believe that an offence under section 32, section 33, section 34, section 36, or section 37 has been, is being, or is likely to be committed, 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 after recording the grounds of his belief- (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act, and ; (b) 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." 3. In the instant case, it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of section 54 were not at all complied with. 4. This, therefore, renders the entire search without jurisdiction and as a logical corollary, vitiates the conviction. We feel that both sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. 4. This, therefore, renders the entire search without jurisdiction and as a logical corollary, vitiates the conviction. We feel that both sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyses the effect of the provisions of section 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far reaching consequences. It was, however, suggested that the word "place" would not include the car, but the definition of the word "place" under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non- compliance of the provisions of section 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him." 16. On close reading of the above said decision of the Hon'ble Apex Court and in the absence of any material placed, under what circumstances PW-1 went to the place without there being any warrant and made a search, the said search also can be held that it is in violation of Section 54 of the Act and it can be held that it is illegal and it is not having any effect in this behalf. Looking from any angle, the prosecution has utterly failed to establish its case as contemplated under the law. 17. In the instant case PW-1 is not deposed that he has undergone the prescribed training in the examination and analyses of intoxicants and materials and he is authorized by the Government in this behalf to analyze the material. But he has also produced Ex.P-4 the FSL Report. Before seizing the said articles, he must satisfy himself that the said articles are intoxicants and thereafter, he has to send the sample for analysis. But he has also produced Ex.P-4 the FSL Report. Before seizing the said articles, he must satisfy himself that the said articles are intoxicants and thereafter, he has to send the sample for analysis. In this behalf also there is a lacuna on the part of the Investigating Officer. 18. I have carefully and cautiously gone through the Judgment of the Trial Court. The Trial Court has not properly appreciated the law and the facts of the case as observed above and it is swayed away by the Evidence of PWs.1 & 5 and ultimately came to the conclusion that there is a case made out by the prosecution and has convicted the accused. I feel that the said finding of the trial Court is not in accordance with law and there is no proper appreciation and the same is liable to be set aside. 19. Accordingly appeal is allowed and the Judgment of the conviction and order of sentence passed by the District & Sessions Judge, Koppal in S.C.No.25/2011 dated 09.01.2012 is set aside and the accused is acquitted of the charges levelled against him and the bail bonds and the surety bonds executed in this behalf are cancelled.