OUSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) The Judicial Magistrate of the Second Class I, Trichur, by his judgment found that the petitioner herein is guilty of the offence punishable under S.55(g) of the Abkari Act, 1077. This was on the basis of his finding that the petitioner herein was found engaged in illicit manufacture of arrack. A patrol party on duty detected the offence and the petitioner herein was charged with the offence aforesaid under S.55(g) of the Act. On the evidence adduced the learned Judicial Magistrate of the Second Class found that the accused is guilty thereunder and convicted him for the same. The accused petitioner was sentenced to suffer simple imprisonment for six months and to pay a fine of Rs.1000/-and in default of payment of fine to suffer simple imprisonment for two months. The findings of facts as aforesaid as also the conviction and sentence were confirmed on appeal by the Chief Judicial Magistrate, Trichur. The accused petitioner herein preferred a revision before the learned Sessions Judge, Trichur who dismissed the same. The petitioner has come up to this Court invoking S.482 of the Code of Criminal Procedure, 1973.

(2.) The learned counsel relying on the decision in K. L. Subhayya v. State of Karnataka ( AIR 1979 SC 711 ) submits that in so far as the requirements of S.31 of the Abkari Act, 1077 have not been complied with the proceedings before the lower courts are vitiated. The Supreme Court decision aforesaid concerned S.54 of the Mysore Excise Act, 1966, corresponding to S.31 aforesaid. Under S.31 in urgent cases where it may not be possible for the officer concerned to get a warrant from the authority mentioned in S.30 of the Act, he may after recording his reasons and the grounds of his belief, enter and search any place and may seize anything found therein which he has reason to believe to be liable to confiscation under the Abkari Act, 1077. I do not think either S.30 or S.31 of the aforesaid Act is attracted to the instant case The aforesaid provisions envisage situations where a search is to be conducted by the concerned authority upon a warrant issued by a magistrate. In my view S.34 of the Act governs the instant case. Under that provision offenders can be arrested and contraband liquor, vessels etc. seized without warrant. This is what has been done in the instant case. The patrol party detected an offence being committed and therefore the utensils and other materials etc. mentioned in S.55(g) of the Act were seized. The case on hand does not fall within the provisions where under a search warrant is necessary for making a search. In that view I do not think that the decision of the Supreme Court mentioned above has any application to the instant case.

(3.) It was next contended that the Sessions Court having in the first instance exercised its jurisdiction under S.374(3) of the Code by taking on its file the appeal, filed against the learned magistrate's judgment, it has no jurisdiction to entertain the revision preferred from that appeal which the Sessions Court made over to the Chief Judicial Magistrate who decided the appeal. This forgets that it is the accused petitioner who invited the revisional jurisdiction of the Sessions Court. It is not in these proceedings under S.482 of the Code that illegality, if any, in such a procedure is to be examined.