MADHAVAN Vs. EXCISE INSPECTOR

JUDGEMENT

(1.) Scope and ambit of the proviso to S.36 of the Kerala Abkari Act (1 Karkadagom 1077, corresponding to English calendar 1902) (in short, the Act), which was extended to the whole of Kerala with effect from 11th day of May 1967 by Act 10 of 1967) is under consideration. This has become necessary as there was cleavage in view expressed by two learned single Judges. In Ramachandran Nair v. State ( 1990 (1) KLT 44 ), it was held that prosecution had failed to give explanation for non compliance with the conditions stipulated in proviso to S.36 and, therefore, accused was entitled to acquittal. Contrary view appears to have been taken in Job v. State of Kerala ( 1991 (1) KLT 491 ). In view of this divergence, learned single Judge, before whom present petition was placed for hearing, has made a reference to this Court.

(2.) In order to appreciate the rival contentions, it is necessary to quote S.36:

(3.) Main part of S.36 mandates that all searches under the provisions of Act are to be in accordance with provisions of Code of Criminal Procedure 1973 (in short, the Code). Originally the expression read 'Code of Criminal Procedure, 1898 (in short, the old Code) which has been subsequently amended. In the Code, modalities of search are indicated in Chapter VII under the heading 'processes to compel the production of things'. Under the sub heading (c), 'general provisions relating to searches' are dealt with. S.99 of the Code corresponds to old S.99. S.100 of the Code has eight sub-sections. Sub-s.(1), (5), (6) and (8) relate to Sub-s.(1) of old S.102 and sub-s.(2), (3) and (5) of S.103 of old Act respectively, word for word. Sub-s.(2) reproduces