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1989 DIGILAW 428 (KER)

Ramachandran Nair v. State

1989-10-04

THOMAS

body1989
Judgment :- 1. On 28-7-1984, petitioner was found carrying a tin containing wash from which the Chemical Examiner, on analysis, detected ethyl alcohol. The petitioner was found guilty of the offence under S.55(g) of the Abkari Act (for short 'the Act') and was convicted and sentenced to undergo simple imprisonment for three months and a fine of rupees one thousand. The conviction and sentence were confirmed in appeal by the Sessions Court. This revision is by the petitioner in challenge of the said conviction and sentence. 2. The Preventive Officer of the Excise Department (P.W.1) conducted a search of the petitioner as the officer had reasonable suspicion that the petitioner was carrying illicit liquor. He opened the tin, smelt and tasted the contents and then he was satisfied that it was illicit arrack. However, he took a sample from the contents of the tin and it was the said sample which was sent for chemical analysis. The officer prepared Ext.P1 mahazar as contemporaneous document evidencing search. 3. PW.3 is the only independent witness who affixed signature in the mahazar. The other signatories in Ext.P1 are the Excise Guards. There is no case for the Preventive Officer that he called any other independent person to attend and witness the search, nor has he a case that none else was available to be called. 4. The main contention raised by the learned counsel for the petitioner is that the search cannot be acted on as the same was not made in compliance with the mandatory requirement in S.36 of the Abkari Act. "Searches how to be made-All searches under the provisions of this Act shall be made in accordance with the provisions of the Code of Criminal Procedure 1898". Provided that the persons called upon to attend and witness such searches shall include at least two persons neither of whom is an Abkari, Police or Village Officer". If the proviso is mandatory, it has to be considered whether its non-compliance has vitiated the search. The fact is not disputed that the Preventive Officer has not called two persons (neither of whom is an Abkari Officer) to attend and witness the search. If the proviso is mandatory, it has to be considered whether its non-compliance has vitiated the search. The fact is not disputed that the Preventive Officer has not called two persons (neither of whom is an Abkari Officer) to attend and witness the search. Learned Public Prosecutor contended that even if the search is not in compliance with the proviso to S.36, it is still a search and unless there are other reasons to vitiate the search, there cannot be any wide proposition that a search becomes illegal merely because it was not in compliance with the proviso to S.36. Reference is made to the decision in Dominic v. State of Kerala (1989 (1) KLT 601). A Single Judge of this court considered the effect of non-compliance with S.102(3) of the Code of Criminal Procedure. As per the said provision the police officer effecting the seizure should report the seizure to the magistrate forthwith. It was held that irregularity in search and seizure by themselves will not make the evidence inadmissible. Admissibility of the evidence regarding search is not the point of attack in this case. It is the legality of the search which is assailed. The mere fact that the independent witnesses who signed the documents turns against the prosecution during trial does not mean that the occurrence had not taken place as alleged by the prosecution or that they were not present at the time of occurrence. In such cases, a duty is cast on the court to scrutinise the evidence more carefully to satisfy whether the procedural safeguards have been observed (Vide Sivaraman v. State of Kerala, 1981 KLT SN Page 9 (Case 17). 5. Whether the legislature intended a particular provision to be mandatory or merely directory or obligatory depends upon the words used the context and setting in which the provision is made and the purpose for which the provision is enacted. The Abkari Act empowers any officer of the Excise Department or the Police Department to search any person, animal, car vessel or other conveyance, about which he may have reasonable cause to suspect any liquor or intoxicating drugs to be concealed. When a search is made, the law requires that it must be conducted in accordance with the Code of Criminal Procedure. When a search is made, the law requires that it must be conducted in accordance with the Code of Criminal Procedure. S.99 of the Code says that the provisions in the sections enumerated therein shall, so far as may be, apply to all search warrants issued under the Code. S.100(4) of the Code enjoins a duty on the officer who makes the search to call upon two or more independent and respectable inhabitants of the locality to attend and witness the search. The decisions are a legion to the effect that mere non-compliance with the provisions will not vitiate the search unless prejudice is caused to the accused. But the wording of the proviso to S.36 of the Act is different. The words "persons called upon to attend and witness such searches shall include at least two persons" indicate the legislative insistence for strict compliance with the proviso. When the statute uses expressions such as "at least", it must be understood that it denotes the minimum number required for its performance when it falls below the minimum number the officer who makes the search has a duty to explain the reason for not adhering to the minimum requirement. If such explanation is acceptable to court, the seizure or search may not get vitiated. But no hard and fast rule can be laid down that, that non-compliance with statutory conditions will or will not vitiate the action made by the officer. In this case, if PW.1 had a case that he actually called two witnesses, but only one of them responded or that he could find out only one person in spite of his efforts perhaps it could have been held that PW.1 had complied with the requirement in the proviso. But, PW.1 has no such case. 6. Learned counsel for the petitioner invited my attention to the decision of the Supreme Court in Madan & Co. v. W. J. Chand (AIR 1989 SC 630). In that decision, the frequently applied rule in Tailor v. Tailor ((1875) 1 Ch D. 426) was cited. The rule is "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden". Though the said rule has attained acceptance in a general way the rule cannot be rigidly followed in all cases. The rule is "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden". Though the said rule has attained acceptance in a general way the rule cannot be rigidly followed in all cases. Even if the conditions in a provision are held to be mandatory no ready inference can be made from its non-compliance that the action is illegal. Court has to see why the condition was not complied with. In this case, the prosecution has failed to give any explanation for the non-compliance with the conditions in the proviso to S.36. 7. For the above reasons, it is difficult to support the search made by P.W.1 in this case. It follows therefrom that the prosecution has failed to prove the case against the petitioner. I, therefore, allow this revision and set aside the conviction and sentence passed on the accused. She is acquitted and is directed to be set at liberty. Fine, if paid, shall be refunded. Allowed.