SIMON KAITAN FERNANDEZ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal against an order passed by the learned Presidency Magistrate, 4th Court, by which he convicted the accused under Section 66 (b) of the Prohibition Act and sentenced him to one month's rigorous imprisonment and a fine of Rs. 300, in default rigorous imprisonment for four weeks.

(2.) THE case for the prosecution was that accused No. 1 and his wife, who was acquitted by the learned Presidency Magistrate, were in possession of 171/2 drams of rectified spirit and this possession was contrary to the provisions of Section 66 (b) of the Prohibition Act. Accused No. 1, the appellant before us is the owner of a tailoring shop and that shop was raided on August 19, 1949, at 8 p. m. The raid took place in the presence of panchas, and according to the prosecution in the rear portion of the shop 171/2 drams of rectified spirit was found. The defence of the accused was that this spirit was planted by the police through the rear door and he was innocent of the offence with which he was charged. The prosecution case was supported by the head constable Mahomed Akram and the panch witness Trivene Ramlakhan.

(3.) IT has been contended before us that in this case we should not accept the evidence of the panch who supports the police-officer and who deposes to the finding of the contraband liquor. It is very necessary that in this case we should lay down clearly how the evidence of panch witnesses should be appreciated. This point is frequently raised before us and conflicting judgments are being cited on this point. It is unnecessary to state how important and how valuable for the liberty of the subject the provisions with regard to search are, and the law provides that the house or the shop of a citizen cannot be searched in the absence of panchas. The Courts are bound to attach the greatest importance to the evidence of panch witnesses, and in order that the Court should attach such importance to panch witnesses it is essential that panch witnesses should be independent witnesses, unbiased and without being in any way under the control of the police. It is only when panch witnesses are independent that the liberty of the subject can be safeguarded as far as searches are concerned. If it is established that a panch witness is likely to be a pliable agent in the hands of the police or is likely to be amenable to the influence of the police or he may be looked upon as a police agent, it is clear that the evidence of such a witness cannot be relied upon. 'primarily it is for the Magistrate to come to the conclusion whether a panch witness suffers from the infirmity to which we have just drawn attention. He has to appreciate evidence and, as I said, primarily it is for him to say whether the evidence of a particular panch witness should be believed or not. But the Court of appeal must be vigilant in seeing that convictions are not based upon the evidence of panch witnesses whose evidence should not be accepted as suffering from the infirmity of being in a position where they might be looked upon as police agents. In deciding whether the evidence of a panch witness should be believed or not, undoubtedly, his status and position in life should be considered. It should also be considered as to whether he is in the habit frequently of acting as a panch, because the very fact that a man constantly acts as a panch may lead to the inference that he is easily available to the police and he would be prepared to be amenable to their influence. The nature of the evidence given by the particular panch witness should also be borne in mind. The Government Pleader is right when he suggests that the mere fact that a man has acted on several occasions as a panch witness should not be sufficient by itself to lead to the inference that the man is a police agent. Take the case of a highly respectable man holding a status in life and who out of a sense of his duty to the State has gone and acted as a panch. Can it be said that a man like this should be disbelieved merely because what is established against him is the frequency with which he has acted as a panch witness?