STATE Vs. PAPPACHAN

JUDGEMENT

(1.) THE State has preferred this appeal against the acquittal of the accused in C. C. No. 1303/1957 on the file of the Sub-Magistrate's court at Kozhikode. The charge against the accused was that lie was in illegal possession of about 3/4 lb. of ganja. On getting information that the accused was in possession of such, a contraband article, Pw. 1, the Sub Inspector of Police at Kozhikode, conducted a search of the-house of the accused where the article was alleged to have been kept, at about 6. 15 p. m. on 10-8-1957 and he recovered the article which has been proved and marked as M. O. 2 series of packets. The box in which these packets were kept was also recovered and the same has been marked as M. O. 1. The search list prepared at the time of recovery of M. Os. 1 and 2 has been marked as Ext. P2. Pws. 1 and 2 are the witnesses who have given evidence in support of the search evidenced by Ext. P2. Charge was laid against the accused under Section 4 (1) (a)of the Madras Prohibition Act of 1937. On a consideration of the evidence adduced by the prosecution, the learned Sub-Magistrate came to the conclusion that the necessary ingredients of the offence under Section 4 (1) (a) have not been conclusively proved against the accused. The correctness of this conclusion is challenged in this appeal.

(2.) UNAUTHORISED or illegal possession of intoxicating drugs is an offence made punishable under Section 4 (1) (a) of the Prohibition Act. It is not disputed that the ganja recovered in this case as per the search list Ext. P2 is an intoxicating drug. The question is whether the prosecution has satisfactorily proved that this ganja was in the possession of the accused and that the same was recovered from his possession or custody. At the outset, we have to point out that the search evidenced by Ext. P2 was not conducted in the manner prescribed by the Act. Section 34 of the Prohibition Act states that

(3.) IT was urged on behalf of the State that even in the absence of the evidence of respectable neighbours to prove the search, the evidence of Pw. 1 who conducted the search, can be accepted as true and a conviction entered against the accused solely on the strength of such evidence. We are unable to agree. The evidence of the prosecutor may or may not be reliable. All the same, it cannot be denied that it will be extremely unsafe and risky to convict an accused solely on the strength of the evidence of the prosecutor. This is particularly so in respect of offences under the Prohibition Act. Under this Act large powers have been conferred on the Prohibition Officers in the matter of conducting house searches and also in the matter of arresting persons found to be contravening the provisions of the Act. The legislature appears to have been conscious of the possible dangers that may follow from a misuse of these powers and that is obviously the reason why a special section like Section 34 was inserted in the Act to regulate the manner in which searches under the Act have to be conducted. The section requires that all searches under the Act shall be made in accordance with the provisions of the Code of Civil Procedure and, as already stated, every search contemplated by that section should be conducted in the presence of two or more respectable persons of the locality in which the search is to be conducted. As to the respectability of the attesting witnesses, opinions may differ. Even, if a margin is allowed in respect of that matter, the necessity of procuring the attendance of neighbours to the place of search to witness the search and to attest the search list, cannot be dispensed with. The prosecution cannot disregard this very necessary and wholesome provision and ask the court to accept the prosecutor's evidence alone as sufficient proof of the truth of the search.