STATE OF KERALA Vs. VELLUNGAN

JUDGEMENT

(1.) 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 under S.8(1)(a) and (g) and (j) of the Prohibition Act.

(2.) During a 'prohibition raid' in the Bara Village, Bekal, Pw. 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 Pws. 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 Dw. 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 Pw. 1 the doctor and Pw. 2 the Sub Inspector, the accused was convicted under S.8(1)(j) and sentenced to pay a fine of Rs. 500/-. The accused has not appealed against the said conviction.

(3.) In respect of the other charge also the learned Magistrate accepted the evidence of Pw. 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 Pws. 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 under 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 S.38 of the Prohibition Act.