RAMACHANDRAN NAIR Vs. STATE

JUDGEMENT

(1.) ON 28-7-1984 , petitioner was found carrying a tin containing wash from which the Chemical examiner, on analysis, detected ethyl alcohol. The petitioner was found guilty of the offence under S. 55 (g) of the Abkari Act (for short 'the Act') and was convicted and sentenced to undergo simple imprisonment for three months and a fine of rupees one thousand. The conviction and sentence were confirmed in appeal by the Sessions Court. This revision is by the petitioner in challenge of the said conviction and sentence.

(2.) THE Preventive Officer of the Excise Department (P. W. 1) conducted a search of the petitioner as the officer had reasonable suspicion that the petitioner was carrying illicit liquor. He opened the tin, smelt and tasted the contents and then he was satisfied that it was illicit arrack. However, he took a sample from the contents of the tin and it was the said sample which was sent for chemical analysis. THE officer prepared Ext. P1 mahazar as contemporaneous document evidencing search.

(3.) WHETHER the legislature intended a particular provision to be mandatory or merely directory or obligatory depends upon the words used the context and setting in which the provision is made and the purpose for which the provision is enacted. The Abkari Act empowers any officer of the Excise Department or the Police Department to search any person, animal, car vessel or other conveyance, about which he may have reasonable cause to suspect any liquor or intoxicating drugs to be concealed. When a search is made, the law requires that it must be conducted in accordance with the Code of criminal Procedure. S. 99 of the Code says that the provisions in the sections enumerated therein shall, so far as may be, apply to all search warrants issued under the Code. S. 100 (4) of the Code enjoins a duty on the officer who makes the search to call upon two or more independent and respectable inhabitants of the locality to attend and witness the search. The decisions are a legion to the effect that mere non-compliance with the provisions will not vitiate the search unless prejudice is caused to the accused. But the wording of the proviso to S. 36 of the Act is different. The words "persons called upon to attend and witness such searches shall include at least two persons" indicate the legislative insistence for strict compliance with the proviso. When the statute uses expressions such as "at least", it must be understood that it denotes the minimum number required for its performance when it falls below the minimum number the officer who makes the search has a duty to explain the reason for not adhering to the minimum requirement. If such explanation is acceptable to court, the seizure or search may not get vitiated. But no hard and fast rule can be laid down that, that non-compliance with statutory conditions will or will not vitiate the action made by the officer. In this case, if PW. 1 had a case that he actually called two witnesses, but only one of them responded or that he could find out only one person in spite of his efforts perhaps it could have been held that PW. 1 had complied with the requirement in the proviso. But, PW. 1 has no such case.