KOYAKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) A bullock cart carrying 592 coconut husks was proceeding along the National Highway (Alleppy -Quilon) on the First day of February, 1983. This was noticed by PW. 1, an Inspector appointed under the Coconut Husks Control Order, 1973 (for short 'the order'). He stopped the cart near the Coconut Research Centre, Krishnapuram and questioned the Petitioner who was riding the cart. It was revealed during such questioning that the petitioner was transporting coconut husks for one Aliyarkunju, and that no permit was issued to transport the husks as per Clause 9 of the order. PW. 1, thereupon seized the contraband load under a mahazar (Ext: P1) and reported the matter to the local police station. The bullock cart, the coconut husks and the Petitioner were produced before the police station. A crime case was registered on the basis of the report and after investigation, the case was charge sheeted, against the petitioner and the said Aliyarkunju. The Special Court (for trial of offences under the Essential Commodities Act). Trichur before which the case was tried found the petitioner guilty of the offence under Section 7(1)(a) of the Essential Commodities Act. 1955 read with Clauses 8(1) of the order. He was convicted and sentenced to undergo simple imprisonment for three months. Hence this revision petition.

(2.) EXT . P1 mahazar was signed by PW. 1 who is its author. PWs. 1 and 3 are the other two persons who signed the mahazar. Both of them were members of the mobile squad led by PW. 1. formed for the purpose of checking and inspecting vehicles or places used for contravention of the provisions of the order. No other independent person had signed the mahazar.

(3.) SECTIONS 102 and 103 of the Code of 1898 correspond to Section 100 of the present code. Sub section (4) of the said section enjoins on an officer who makes a search "to call upon two or more independent inhabitants of the locality in which the place to be searched is situate', to attend and witness the search. Sub -section (5) requires that the search must be made in the presence of those persons, and a list of all things seized in the course of such search shall be prepared and signed by such witnesses. Learned counsel cited a few decisions in support of the contention that a search made in contravention of the aforesaid provision is illegal and hence no legal action can be made on the basis of such a search. The learned Public Prosecutor on the other hand, cited a catena of decisions in favour of the position that mere non -compliance with the provisions of Section 100 of the Code is not sufficient to render the search illegal and that a conviction can be made in a criminal case where such a search is involved. But the main contention of the learned Public Prosecutor is that Section 100 of the Code is not applicable when the search made is in respect of a moving vehicle though the vehicle was stopped before making the search The basis of the contention is that the word "place" used in Section 100 does not include a vehicle. The soundness of the aforesaid contention can be examined before considering the question whether non -compliance with Section 100 will render the search and seizure invalid or illegal.