STATE OF MAHARASHTRA Vs. KUPPUSWAMY MURGESH ACHARYA

JUDGEMENT

(1.) THIS is an appeal by State against the acquittal of the opponent, who was prosecuted for committing an offence punishable under S. 66 (1) (b) of the Bombay Prohibition Act.

(2.) THE prosecution story as deposed to by two prosecution witnesses, Sub-Inspector Nagori and Police constable Shriram Keshav Ghag, is that on the evening of 28th January 1962 at about 6-30 p. m. they detained the opponent accused on suspicion, when he was passing along Mahatma Gandhi Road in Goregaon. He was then carrying a hand-bag, in which a bladder containing liquor was found. The accused in his statement denied that he was carrying any liquor. Mahatma Gandhi Road is a crowded locality. The two police witnesses admitted in their evidence that many persons were going on he road when they detained the accused and that they had not made any attempt to make a panchnama. As no panchnama was then made, the learned Magistrate refused to rely on the evidence of these two police witnesses. He therefore, acquitted the accused.

(3.) THE question whether a conviction can in such cases be based on the uncorroborated testimony of police officers has been considered by this Court in Shanwar Manu v. Emperor, 52 Bom LR 38: (AIR 1950 Bom 267) and Emperor v. Kisan Narayan, 52 Bom LR 280: (AIR 1951 Bom 186 ). It has been held in these cases that where it is incumbent under the law to make a search in the presence of the panchas, but it is not so made, the Court will be slow to act and will ordinarily not base a conviction on the uncorroborated evidence of police officers alone. The reason for this is that corroboration of the police officers' evidence, which the law requires should be made available, is not forthcoming. There may, however be cases in which circumstances may render it impossible to comply with the provisions of law in regard to search in the presence of panchas. A police officer may suddenly come across a working still at a place at or near which no other persons are available. In such a case it will not be reasonable to expect that the police should not perform their duty until they could find the panchas, in whose presence they could conduct the search or seize the incriminating articles. Consequently in such cases it will be open to the Court to act on the evidence of the police officers and convict the accused if the Court is satisfied that their evidence is true.