State of Kerala vs Vellungan

Anna Chandy, J.—The respondent is the accused in C. C. 1024 of 1962 on the file of the Judicial Sub-Magistrate, Hosdrug. He stood charged with the offences u/s 8(1) (a) and (g) and (j) of the Prohibition Act. During a ''prohibition raid'' in the Bara Village, Bekal, P.W. 2 the Police Officer in charge of the station found the accused in front of the accused''s house in a state of intoxication. He arrested the accused and questioned him. The witness then proceeded straight to the house of the accused in the company of the accused and made a search of the house in the presence of P. Ws. 3 and 4 and seized two bottles containing 16 drams of hot I. D. Arrack from a pit inside the house. He also found a copper boiler with distillation marks and smell of fermented wash, a copper vessel used as condenser with distillation marks, and a smell of arrack and a receiver with smell of arrack and wash from the house. A copy of the search list was given to the accused and his acknowledgment was obtained. The accused was produced before the doctor who examined him and certified that he had consumed liquor. The accused denied having committed any offence. His case was that he had taken some arishtom for stomach pain on his way home, from D. W. 1 a Vaidiar and on reaching home a police man told him that certain materials were recovered from his house. He told the police man that he was not doing illicit distillation in his house. When the Sub-Inspector asked him whether the copper vessel kept there was his, he admitted that it belongs to him. Subsequently the Sub-Inspector arrested him and sent him to the doctor. The evidence of D. W. 1 was discarded for good reasons and the plea of the accused was repelled. Accepting the evidence of P.W. 1 the doctor and P.W. 2 the Sub-Inspector, the accused was convicted u/s 8(1)(j) and sentenced to pay a fine of Rs. 500/-. The accused has not appealed against the said conviction.

In respect of the other charge also the learned Magistrate accepted the evidence of P.W. 2 the Sub-Inspector regarding the search and recovery and held that the contraband produced before court was recovered from the possession of the accused. He scanned the evidence of P. Ws. 3 and 4 the attestors to the mahazar who turned hostile and found on good data that they were deliberately suppressing the truth with a view to helping the accused. However the learned Magistrate has acquitted the accused of the charges u/s 8(1)(a) and (g) on the ground that the search was illegal since the Sub-Inspector who effected the search was not authorised by the Government to inspect the house as required in Section 38 of the Prohibition Act.

While the State challenges the soundness of the said finding in this appeal, the learned counsel for the accused would argue for an acquittal for the reason that it is not proper to base a conviction on the uncorroborated and interested evidence of the officer who effected the search and charge-sheeted the case more so in view of Section 61A of the Act which may entitle the officer to a reward for the successful detection of the offence. Having gone through the evidence of P.W. 1 with more than ordinary care and caution and considered it in the light of the criticisms levelled against it, I have no hesitation in accepting his evidence as absolutely true. His evidence regarding the arrest of the accused in a state of intoxication in front of his house and the circumstances under which he effected an immediate search of the house and recovered the offending articles reads quite natural and convincing. The case was promptly charge-sheeted by him the same day and the articles seized were produced before the Magistrate. The accused who does not challenge his conviction u/s 8(1)(j) has thereby accepted the truth of at least the major part of the officer''s evidence.

As for the two attestors both of them are literate persons who admit having signed the mahazar. P.W. 3 further admitted that he signed it in the accused''s house after it was read over. P.W. 3 clearly admits that the house of the accused was searched and he saw the articles being kept in front of the house though he would add that he did not actually see them being taken out from the house. P.W. 4 also admitted having seen all the contraband articles in front of the house of the accused and the presence of the accused and P.W. 3 at the time. According to him the accused and his wife and children are the only occupants of the house and the accused is the only male member. His complaint also is that he did not see the actual search. The accused in his Section 342 statement admits the presence of both these witnesses. The learned. Magistrate has given good reasons for concluding that they were not present at the time of the actual search, If the contraband was found from some other place or recovered from some one else''s possession, P.W. 2 had absolutely no motive to foist them on the accused. I have no hesitation in confirming the finding of the learned ''Magistrate that all the items of contraband produced in this case were recovered from the possession of the accused.

The next question for consideration is whether the search was legal. P.W. 2 who was admittedly the officer in charge of the Bekal Police Station,.when he found the accused in a state of intoxication in front of his house had good reason to believe that an offence u/s 8(1)(j) of the Act was committed. Under such circumstances, Section 37 of the Act authorises him to search the accused''s house and seize anything found therein which he has reason to believe to be liable to confiscation under the Act. Of course there is the condition that before the officer proceeds to act under that section he should have reason to believe that the delay occasioned by obtaining a search warrant u/s 36 will prevent the execution thereof and record his reasons and the grounds of his belief. In this case the officer has failed to do so though it is self-evident that any delay occasioned by obtaining the search warrant would have defeated the object of the search. However the failure to record the reasons will not indicate that the search was not one made u/s 37 as is contended by the learned counsel for the accused. When the officer was competent to act u/s 37 there is no justification for presuming that the search was u/s 38 and then invalidating his action on the ground that he was not authorised by the Government to act under that section. Moreover section 38 deals with entry and inspection and does not appear to contemplate the seizure of contraband and as such the Sub-Inspector''s action in entering the house and seizing the articles can only have been u/s 37. The only remaining question is as to the effect of non-compliance with the condition of recording the reasons. As observed by the Supreme Court when considering the failure to observe similar provisions in the Criminal Procedure Code:

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 articles is not vitiated. It may be that where the provisions of Ss. 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 the seizure. But beyond these two consequences no further consequence ensues. (Vide Radhakishan Vs. State of U.P., ).

The order of acquittal is unsustainable and has necessarily to be set aside. In addition to the conviction and sentence already passed the accused is convicted u/s 8(1)(a) and (g) of the Kerala Prohibiton Act and sentenced to pay a fine of Rs. 500/- and in default to suffer simple imprisonment for three months.