STATE OF KERALA Vs. MATHAI

JUDGEMENT

(1.) THE State has preferred this appeal from the judgment of the Additional Second Class Magistrate,Trivandrum,acquitting the accused of an offence under S.8(1 )(a)of Act XIII of 1950(Travancore - Cochin ).The case for the Prosecution was that at 9 A.M.on 22 -8 -1958,PWs 1 and 2,Flying Squad Prevenlative Officers,saw the accused proceeding on a cycle along Kannammoola Pettah Road,carrying 36 ounses of arrack in a bottle and that seeing them,he abandoned the cycle and the bottle containing arrack on the road and ran away.PW 1 recovered the cycle and the arrack and prepared the mahazar(Ext.P1)which was attested by PWs 2 and 3.The case was duly charged before the Second Class Magistrate who held that there was no satisfactory evidence to convict the accused.The respondent who accepted notice has not cared to appear.

(2.) THE evidence in the case consist of the testimony of PWs 1 to 3,the mahazar regarding seizure(Ext.P1)and the Chemical Examiner's certificate(Ext.P2 ).PWs 1 and 2 clearly swear in terms of the prosecution case and nothing has been brought out in their cross examinations to disbelieve them,Ext.P2 proves that the bottle contained arrack.As regards the oral evidence,the learned Magistrate observed: "On a mere reading of the deposition of PW 3,it can be seen that his evidence is not inherently interested in the Prosecution and so it is not safe to act upon it,without corroboration." PW 3 stated that he saw the accused abandoning the cycle and the bottle containing the arrack,that he was present when the mahazar(Ext.P1)was prepared and that he attested the same.It appears that,in recording his deposition,he said that it was not a woman who was on the cycle( s'tIyl| )This was recorded so as to read that it was not the accused( 'ptiyl| ) who was on the cycle.The evidence was given and recorded in Malayalam.PW 3 immediately pointed out that it was the accused himself who was going on the cycle with the bottle.Assuming that this is what induced the Magistrate to disbelieve him,I do not see why he should be disbelieved on account of the faulty recording of the evidence,which he promptly wanted to be corrected.Except for the sweeping statement that his evidence does not carry conviction,the learned Magistrate does not point out any reason for discarding the same.PW 3 fully supports the Prosecution and I believe him.I may also point out that the learned Magistrate seems to be under the impression that,in every case under the Prohibition Act,there should be independent evidence to corroborate the officers of the Department.This arises from an incorrect construction of the decisions reported in State v.Pappachan (1958 KLT 966:1958 KLT 868) and State v.C.Bernantiz (1959 KLR 665 ). These were cases in which arrack or articles used for manufacturing arrack were recovered as a result of search of houses.In such cases,S.34 of Act XIII of 1950 requires that the search there fore conducted in accordance with the provisions of the Code of Civil PC,and the reason for not acting on the evidence of the officers of contribution Department in those cases was that search was not conducted in conformity with the provisions of S.103 of the Code of Criminal Procedure.It is incorrect to hold,on the basis of these decisions,that even in cases in which the seizure of such articles is made without search of any permises,there should be independent evidence to corroborate the officers.Each case has to be decided on the evidence of the case.