THE inescapable mistake that resulted in the Full Court concluding that the obstruction  charge against the Appellant Budhai could not succeed because the Search Warrant was invalid.

However, a magistrate who first heard the case presented by the respondent, Fraser, did not observe the defect  in the Search warrant and found the Appellant Budhai  guilty of obstructing the Respondent in the execution of his duty under the Intoxicating Liquor Licensing Ordinance. Chapter 316.
Budhai appealed and the Full Court  of the Supreme Court , constituted  by Justices Keith Gordon and Akbar Khan, heard the appeal.
The appellant Budhai was convicted under  section 99 of the Spirits Ordinance, Chapter 319,  of the offence  of obstructing  the respondent  in the execution of his duty under the Intoxicating Liquor Licensing Ordinance, Chapter 316.
At the time of the obstruction the respondent   was seeking  to execute  a search warrant  obtained under section  9 of the Summary  Jurisdiction (Procedure) Ordinance Chapter  15. No grounds of suspicion were  stated  to the justice  of the peace who issued the warrant.
The Full Court Held: the conviction was bad because  the search warrant was not issued  under section  104  (i) of the Spirits  Ordinance , Chapter 319, and because no grounds of suspicion were stated to the justice  of the peace  who issued it. Boston v-Balgobin, 1921 .R.B.G. 41 and Bacchus v-Bissessar , 1960 L.R.B.G. 409,distinguished. Appeal allowed.
At the hearing, Attorney-at-Law Mr. Bhairo Prasad appeared for the appellant while M. E. A. Romao, Senior Crown Counsel represented  the respondent.
According to the Judgment of the Court:  This is an appeal by the appellants against their conviction on the 20th March , 1961,  under section 99 of the Spirits Ordinance, Chapte  319, for obstructing the respondent in the execution of his duty under  the Intoxicating  Liquor Licensing Ordinance, Chapter 316, an excise law.
The facts clearly indicate that the obstruction  took place when the respondent sought  to execute a search warrant  obtained under section 9  of the Summary Jurisdiction  (Procedure)  Ordinance  Chapter 15.
Counsel for the appellants has argued before this court  that the search warrant under which the respondent purported to act  should have been in accordance with section  104 (i) of the Spirits Ordinance , Chapter 3219; further, that  the search warrant  under which the respondents acted could not have been referable to section  104  (1)   because it was  lacking  in a material particular, viz; – that no grounds  of suspicion  were stated to the justice  of the peace who issued the search warrant; the search warrant  on which the case  before the court  is founded is therefore bad and in the result  there could be no obstruction as contemplated by section 99 of the Spirits Ordinance, Chapter 319.
It was contended by counsel for the respondent  that because all offences  under the excise laws  were  summary offences  it was in order for the respondent  to have acted  on a search warrant  which was valid under section 9  of the  Summary Jurisdiction  (Procedure) Ordinance, Chapter 15.   He cited the case of Boston v. Balgobin, 1921` L.R.B.G. 41, in support of his argument.
In his reason for decision the learned trial magistrate relied on the decision of the Full Court of the Supreme Court  in Bacchus v- Bissessar, 1960,L.R.B.Gb.  409.
Both these cases are however distinguishable  from the  present case, in that in each of the cases cited the ratio decidendi turned  on the point  that material  evidence found  on the execution  of a warrant obtained in accordance with section 9  of the Summary Jurisdiction(Procedure) Ordinance , Chapter 15,not only disclosed  offences under the Spirits Ordinance, Chapter, 319, but provided all the elements  which went  to prove  those offences.
In those cases  the Court rejected the argument  that the evidence which came to light on the execution of the search warrants should not be admitted in evidence.
In the instant  case  although  the obstruction  alleged by the  respondents  occurred during the execution of a search warrant  obtained under section 9 of the Summary Jurisdiction (Procedure) Ordinance,Chapter 15,  the appellants were not charged with an offence  under the Summary Jurisdiction (Offences) Ordinance Chapter 14, for which section 28 (b) makes ample provision, but with an  offence under section  99 of the Spirits Ordinance, Chapter 319, which provides for a more severe penalty.
Section 104 (1) of the Spirits Ordinance ,Chapter 319 provides the method by which a search warrant  under the Ordinance should be obtained.  It reads  thus.
“104 (1) If an officer makes oath that there is good cause  to support that any distillery    apparatus, spirits or materials  for the manufacture of spirits  is or are unlawfully kept or deposited in any house  or place, and states the  grounds  of suspicion, any justice of the peace, if he thinks fit , may issue a warrant  authorizing the officer to search the house or place.’
It is clear from the section that a prerequisite for issuing of a search warrant under the Ordinance is the statement of the grounds of suspicion to the justice  of the peace. It is conceded by the respondents that this was not done.
In the circumstances  the warrant under which the respondent sought to act was  not in keeping  with the special provisions of section 104 (1) of  the Spirits Ordinance,Chapter 319, with the breach of which  the appellant was charged.,
The respondent having elected to proceed against the appellants under the Spirit Ordinance, Chapter 319, an Ordinance which is by far  more penal in its scope than the Summary Jurisdiction (Offences) Ordinance,Chapter 14, it was up to him to have  taken all the necessary preliminary  steps to comply with the Spirits Ordinance. He failed to do so. This appeal is consequently allowed and the conviction of the magistrate set aside with cost to the appellants.      Appeal allowed.