(1.) The revision petitioner, a certain Quirsheed Miya, has been convicted by the Courts below under S. 9 (a) of the Opium Act, for possession of two opium packets (M. Os. 3 and 4) and sentenced to undergo rigorous imprisonment for six months. In view of certain important considerations that arise in the case, I shall first briefly refer to the case as appearing in the prosecution evidence. This revision petitioner and his wife were admittedly occupants of room No. 33 in Ananda Vihar Hotel, Coimbatore town, on the relevant date 9th September 1962. It appears that at about 8 -30 p.m. on 8th September 1962, a police party headed by an officer, who is not the officer subsequently claims to have seized the packets of opium conducted a careful search of this room, but without recovering any suspicious articles of contraband. Subsequently, at 1 a.m. on 9th September 1962, another Sub Inspector, P.W. 5, came to the room, accompanied by two witnesses, namely, P. Ws. 2 and 3, and conducted a search of room No. 33. Admittedly, the revision petitioner and his wife, who was a co -accused with him in the trial Court, were then in the room. After search of two boxes, M. Os. 1 and 2, P.W. 5 claims that he recovered two paper packets containing opium, M. Os. 3 and 4. A significant fact is that P.W. 5 did not obtain a search warrant before searching this room. He states that he sent an advance intimation to the Sub Magistrate of Coimbatore, and that he proceeded to search without obtaining a warrant, "as delay in getting a search warrant would defeat the purpose". The conviction rests upon the testimonies of P.W. 5 and the witnesses who accompanied him, P. Ws. 2 and 3. The case does raise certain important considerations, with regard to the principles upon which a search of this kind should be conducted by the authorities, and the credibility of the entire evidence for prosecution. Under S. 14 of the Opium Act (I of 1878) the search has to be conducted, if it is a search of premises upon information received "between a sunrise and sunset". This salutary provision was enacted by the legislature, even as early as 1878, and long before our Constitution came into force guaranteeing certain fundamental rights of the subject, obviously in order to prevent abuses of power that might occur during, or by means of, nocturnal raids, or raids at unseasonable hours. In the present case, the authorities had really no justification for contravening this provision of law. The Sub Inspector P.W. 5 appears to have been under the impression that he was conducting the raid under the Madras Prohibition Act. Even so, in the context of his knowledge, which he does not deny, that an earlier search of the very same premises had been conducted by a policy party at 8 -30 p.m. on 8th September 1962, without result, one would have thought that he would either have taken precautions to arm himself with a search warrant from the nearest Magistrate or would have respected S. 14 of the Opium Act and conducted the search after sunrise. The room was one in a hotel, occupied by the revision petitioner and his wife. The admission in the record is that the wife was sitting on the cot in the room, when the police party entered. I think it is essential to emphasise that police officers must firstly thoroughly acquaint themselves with the statutory provisions regulating the scope and degree of their powers in such matters. That is all the more vital, where the provisions have been enacted for the security of the subject, or to protect the subject from unreasonable intrusion.
(2.) Apart from this indisputable contravention of S. 14 of Act I of 1878, the entire prosecution evidence suffers from other grave infirmities. The police officer appears to have honoured the mandatory requirements of S. 103, Crl.P.C. more in the breach than in the observance. Neither P.W. 2 nor P.W. 3 can be termed a respectable inhabitant of the locality, and, in fact, their status and evidence appear to be altogether suspect. P.W. 2 has been discredited by the Courts below, practically as a stock witness for the police P.W. 3 is a taxi driver, and not a resident of this locality; it is not very clear why he was requisitioned to accompany the police party, when the raid was conducted in a crowded hotel, with more respectable occupants of all the other rooms, one or other of whom might have been requested to witness the search. I have to add that it is mysterious how, when the earlier search at 8 -30 P.M. had proved totally fruitless, the supposed packets of opium came into the possession of the revision petitioner subsequent to that search, or how P.W. 5 was able to guess that they would be there, notwithstanding the failure of the previous search to trace these packets. These infirmities in evidence, which are indisputable, throw a cloud upon the entire facts of the raid, and leave a distinct impression that it would not be safe, in the interests of justice, to sustain the conviction of the revision petitioner. As the learned Public Prosecutor urges, the fact that a search has occurred in contravention of a specific requirement of law, does not necessarily vitiate the seizure made in pursuance thereof; vide the observations of the Supreme Court in Radhakishan v/s. State of Utter Pradesh, 1963 MWN Crl 42 (S.C.)., But where the search was illegal, and conducted under such circumstances as to cause material prejudice to the accused, because of failure to conform to the requirements of law, the Courts will not sustain the search nor the supposed seizure. In the present case, I am unable to accept the evidence of the witnesses to the search, namely, P. Ws. 2 and 3. One of them frankly admits that the Sub -Inspector, P.W. 5, did not even allow himself to be searched by the witnesses before he entered the room, in order to ensure the protection to the person or persons who might be affected by the search and discovery of contraband to the effect that he (police officer) had nothing on his person which could prejudice the search. It is true that in conceivable cases, difficulty, and even acute difficulty, might be experienced by the authorities of the Police in obtaining the co -operation of respectable residents of the locality to such procedures as a house search; it is unfortunate that civic conscience is still so imperfect, even amongst educated persons, that there is a marked reluctance to be involved in such incidents. But that cannot diminish the great need for strict compliance with legal requirements, which have been enacted for the security of the citizens. I think I have indicated sufficiently that, in my view, the conviction cannot be sustained, as the evidence cannot be accepted with regard to its credibility and truth. Accordingly, I acquit the revision, petitioner and direct that his bail bond be cancelled. The order with regard to the confiscation of the contraband will stand, as the revision petitioner does not lay claim to these articles.