State of Kerala vs Appu

Anna Chandy J.

This is an appeal by the State from an order of acquittal. The respondent was charge-sheeted by the Trivandrum Range Excise Inspector for offences punishable u/s 8 (1) (a) and (g) of the Travancore-Cochin Prohibition Act (Act XIII of 1950). The case against the accused was that he was found in possession of liquor, and of utensils and materials for the manufacture of liquor. On 28-10-1958 at about 6-30 A. M., 160 ozs. of illicit arrack, 41/2 paras of wash and utensils necessary for manufacturing arrack were recovered from his house bearing No. T. P. IV 246 in Aramada Pakuthy, Trivandrum Taluk which was declared to be a prohibition area. The recovery was effected by the Flying Squad Excise Inspector, Sri Gopinathan Nair, who is the first witness in the charge-sheet. The learned Second Class Magistrate before whom the accused was tried, dismissed the complaint and acquitted the accused u/s 247, Criminal Procedure Code for the absence of the complainant. The offence u/s 8 (1) (a) is triable as summons case and the offence u/s 8(1) (g), namely, being in possession of materials, utensils, etc for the manufacture of liquor, being an offence punishable with imprisonment which may extend to 2 years, is triable as a warrant case. In a case where there are two charges arising out of the same transaction, one of which is triable as a summons case and the other as a warrant case, though it is permissible for the Magistrate to try them together, if he does so, he must follow the procedure laid down for the trial of warrant cases. Hence the order of acquittal passed u/s 247 for non-appearance of the complainant is irregular. The only provision under which the Magistrate could have acted is Section 259 of the Code. Section 259 enables the Magistrate to discharge the accused at any time before the charge has been framed, provided the offence may be lawfully compounded or is not a cognisible one. Section 20 of the Prohibition Act states that all offences under the Act are cognisible and that the provisions of the Code of Criminal Procedure with respect to cognisible offences shall apply to them. There is also no provision in the Act for compounding any of the offences punishable under it. Hence the order of acquittal even if it is considered as one of discharge u/s 259 is irregular and cannot be sustained. This irregularity in following the procedure prescribed for the trial of summons cases instead of that prescribed for the trial of warrant cases, is in our opinion not a mere matter of form which could be cured u/s 537 of the Criminal Procedure Code. Moreover in this case it has occasioned a failure of justice.

It has also to be observed that witness No. 1 in the charge-sheet is not the complainant in the case. The charge report in this case was signed and laid by the Excise Inspector, Trivandrum Range and in the order of acquittal itself the complainant is mentioned as Sircar-charge-sheeted by the Trivandrum Excise Inspector. Sri Gopinathan Hair who detected the offence is only one of the witnesses cited in the charge-sheet. Hence the dismissal of the complaint for the absence of Gopinathan Nair is faulty. The learned Magistrate was also wrong in dismissing the complaint before taking proper steps to enforce the attendance of witnesses for whom he had sent out process in pursuance of the prayer made in the charge-sheet. Witness No. 2 is the Preventive Officer, G.K. Padmanabha Pillai who was present at the time of the search and recovery and has attested the recovery mahazar; witnesses 3 and 4 are the occupants of the rooms adjoining the accused''s house and witness No. 5 is the accused''s wife. All of them have also attested the recovery mahazar. It is seen from the records that on 3-1-1959 summons was ordered to all the witnesses including witness No. 1 and the case stood posted for recording evidence to 9-1-1959. The accused was absent on that date and summons to witness No. 1 was not served. The summons to the rest were served though only one witness was present in court. The case was adjourned to 16-1-1959 but no steps were taken to secure the attendance of witness No. 1 whose summons had not been returned. It was on 16-1-1959 when all the witnesses except No. 1 were present that the court dismissed the complaint. The proper course for the court would have been to examine the witnesses present in court and order further steps for securing the attendance of witness No. 1. In the result, the order of acquittal is set aside and retrial of the case in accordance with law is ordered. The criminal appeal is allowed as indicated above.