EMPEROR Vs. DINKAR NHANU MANGAONKAR

JUDGEMENT

(1.) The accused, on whose behalf this revision application has been presented, was convicted by the Second Class Magistrate, Vengurla, for an offence under Section 43 (1) (a) of the Abkari Act, the conviction being based on evidence to the effect that a bottle containing Kaju liquor was found in a room of his house and two other bottles also containing some liquor were found buried in a heap of ashes, under the roof of his Padvi. The bottle of liquor alleged to have been found in the house contained one and a half drams and the two bottles found in the ash heap outside contained six drams and four drams respectively. The accused appealed against his conviction but his appeal was dismissed.

(2.) The only contention put forward in this revision application, which, in our opinion, has any substance is that the search of the accused's house was not carried out in the manner prescribed by Section 103 of the Criminal Procedure Code. It is provided there that before making a search, the officer about to make it shall call upon two or more respectable inhabitants of the locality to attend and witness the search. It is further provided in Clause (2) that the search shall be made in their presence. Now in this case, although Sub-Inspector Naik, who took part in the search, has stated at the beginning of his deposition that the house was searched in the presence of Panchas, it appears that the three persons who were summoned as Panchas did not actually witness the search of the house and finding of the bottle of liquor therein. Sub-Inspector Naik says that he was standing outside the house until the bottle of liquor was found, and then he went inside the room. Two of the Panchas, according to him, were with him. The third Pancha, he says, had gone into the house, and he mentions that the Pancha who went inside was probably Mahabaleshwar. Mahabaleshwar, however, was examined as a witness and he has stated that neither he nor the other two Panchas went inside until the bottle of liquor was found. Inspector Mondkar, who actually made the search, has stated that the Police Patil who was also one of the Panchas went inside with him. But the Police Patil was also examined as a witness and has stated that he and the other two Panchas went inside with Mr. Naik after the finding of the bottle of liquor and not before. This witness deposes that four persons went into the house to make the search. They were three Excise peons and Inspector Mondkar. They were accompanied by the accused but not by any of the Panchas. It is quite clear, therefore, that there were not two of the Panchas present inside the house while the search was being made and when the bottle was found, and it is doubtful on the evidence whether there was even one present inside the house at that time. We consider that both the - letter and the spirit of Section 103, namely, the provisions that the Panchas are to attend and witness the search, and that the search .shall be made in their presence, require that the Panchas should actually accompany the persons making the search and should be actual witnesses to the fact of the finding1 of the property. It is not, in our opinion, a sufficient compliance with this section that the Panchas should merely be summoned and kept present outside a building while the search is being carried on within it, and then called in to see what has been found.

(3.) The question then arises whether this irregularity in the search and the failure to comply with the clear provisions of Section 103 make it necessary that the conviction of the accused should be sot aside. In connection with this point we have boon referred to a number of authorities, but unfortunately the majority of them are not in any authorised report. The learned counsel for the applicant relies on Ah Tuck V/s. Emperor (1906) 4 Cr. L.T. 390 and Lachmi Narain V/s. Emperor (1919) 20 Cr.L.J. 742. The former case was a prosecution for gambling under the Burma Gambling Act. The irregularity there was that the persons called as Panchas were not respectable persons of the locality within the meaning of Section 108. It was pointed out by the Court that the provisions in Section 103 were aimed against possible chicanery and unfair dealing on the part of the officers entrusted with search warrants, and were made in order to ensure confidence, in neighbours of the persons whose houses were searched and in the public generally that anything incriminating which may be found in premises searched shall be really found and shall not be what is called "planted." Those remarks are opposite, but the actual decision in the case was that as the Burma Gambling Act requires that search shall have been made strictly in accordance with Section 103 in order that a certain presumption under Section 7 of that Act could be drawn, and as the provisions of Section 103 had not boon complied with, therefore the presumptions could not legitimately be applied. That is a point somewhat different from the one with which we have to deal.