K JOHNSON Vs. STATE

JUDGEMENT

(1.) THE petitioner has been convicted under Sec. 4 (1) (a) of the Madras Prohibition Act for having been found to be in possession of two gallons of I. D arrack and was sentenced to undergo rigorous imprisonment for two months by the Additional Sub Magistrate, Bhimavaram. On appeal, the Sub Divisional Magistrate, Bhimavaram confirmed the conviction and the sentence In revision, the learned Counsel for the petitioner contends that there were no mediators at the time of the seizure and that the mandatory provisions of Section 103, Cr. P. C. which are made applicable to all searches ueder the Madras Prohibition Act by reason of Sec. 34 of that Act, have not been complied with. In Abdullah v. THE State ' Panchapakesa Ayyar J. held that it is of the utmost importance that there should be satisfactory evidence before the court regarding the articles seized on a search under the Prohibition Act from each accused person. In that case there was a dispute as to what was seized and the learned Judge held that at least one of the panchayatdars to the search should have been examined in the Court to corroborate the evidence of the search officer. THE learned Judge explained this cafe in an unreported decision in Criminal Revision Case Nos. 1271 and 1276 of 1950 (on the file of the Madras High Court) where he distinguished the earlier decision and held that the rule does not apply to searches conducted in open place. In Bishnath Rai v. Rex Seth J, held that the provisions of Sec. 103 Cr. P. C. are very salutary provisions for the protection of the interests of an accused person and where they are departed from, the burden lies on the prosecution to explain the circumstances under which it was not possible to comply with those provisions. With those observations, I respectfully agree. If the prosecution- case were to be accepted, the accused was apprehended by the Prohibition Inspector and others who were guarding the route between Vissakoderapalem and Gunupudi when he was coming along with a gunny bag containing a motor tube with two gallons of I. D. arrack. It was 10-30 P. M., when the accused was apprehended. THE place where he was apprehended is a jungle. THE explanation offered by the prosecution for not complying with the provisions of Sec. 103 Cr. P. C. is that having regard to the time and the place where the accused was apprehended with the contraband, it was not possible to get at any mediators. Having regard to the circumstances of the case, I think this explanation is reasonable and satisfactory. THE burden of showing why it was not posible to comply with the provisions of Section 103 Cr. P. C. has thus been discharged by the prosecution. in Satagopala Ckarlu v. Satrughna Behara Ayling and Napier JJ. held that where the officer has given an explanation for the failure to strictly comply with the provisions of Section 103 Gr. P. C. it does not make the search illegal.

(2.) THE contention advanced on behalf of the petitioner, therefore, fails. It is next contended that the sentence of two months rigorous imprisonment is excessive. THE defence of the petitioner was that he was all along in his house on the date when he is alleged to have been apprehended and that the case has been falsely foisted against him. This defence has been found to be untrue. Having regard to the circumstances of the case, I do not think that the sentence awarded to the petitioner is excessive. THE conviction and the sentence awarded to the petitioner are therefore confirmed and this Criminal Revision Case is dismissed. M. s. R. Revision dismissed.