1. This is an appeal from an order passed by the learned Presidency Magistrate, 15th Court, convicting the accused under Section 43 (1) (a) and (b), Bombay Abkari Act, 1878, and sentencing him, under Clause (a), to a fine of Rs. 500 in default rigorous imprisonment for six weeks, and under Clause (b), to rigorous imprisonment for one month.
2. The case for the prosecution was that Sub-Inspector Chavan received information on 29th June 1948, about a still being worked in one of the islands in the Dharavi Creek. Thereupon he along with a police constable went there and he found the accused actually attending to a working still. He was arrested and charged as stated above. In support of the prosecution case, Sub-Inspector Chavan gave evidence and also the police constable who had accompanied him, and both these witnesses were clear in their evidence that the accused was actually seen changing water from the condenser of the still. The defence of the accused was that he along with his young daughter, 8 or 9 years old, had gone in a boat with nets in order to catch fish and that he had nothing whatever to do with the still. He was arrested and brought to the island where the still was working. The learned Magistrate accepted the prosecution evidence and disbelieved the defence set up by the accused and convicted the accused of the offence with which he was charge 3.
3. Mr. Pathare for the appellant has drawn our attention, firstly, to the fact that no panchanama was made in this case. It is not disputed that as the still was found in an open space the law does not make it obligatory upon the police to seize the still in presence of panchas. But what Mr. Pathare emphasises is the fact that the police had intimation about the working of the still and therefore before raiding the place they could have gone there accompanied by panchas. Mr. Pathare says that the result of not taking panchas with them is that the Court is left only with the evidence of police witnesses and the conviction of the accused is based only on police evidence. As this is a question that has often come up for consideration, it is necessary in our opinion once and for all to state certain basic principles which should guide the Courts below with regard to the appreciation and acceptance of police evidence in cases like this.
4. Where the law makes it obligatory for a search to take place in presence of panchas and a search has not taken place in presence of panchas and the only evidence on which the' prosecution ask for a conviction of the accused is police evidence, then certainly the Court should not ordinarily act on that evidence. (Because the law has provided a certain safeguard by way of a panchnama being made and a search taking place in presence of panchas, and, in the absence of that safeguard, it would generally not be safe to convict an accused person. The absence of that safeguard would be prejudicial to the accused, and in most cases that prejudice is apparent in the very fact of doing away with the safeguard provided by the law. There is a second class of cases where it is impossible to seize an article or to arrest a person in presence of panchas. Police officers may suddenly come across a working still or they may come across a person on whose person there are incriminating articles and they may have to seize the still or they may have to arrest the person. It is impossible to contend in these cases that the police should not do their duty till they had found some panchas in whose presence they should seize the still or arrest the suspected person. In cases like these, it would be open to the trial Court to accept the police evidence and convict the accused if the Court was satisfied that the evidence was of a satisfactory character and the guilt of the accused was proved. Then we may have a third class of cases where although the law does not make it obligatory for a search to take place in presence of panchas still in view of the information already received there is sufficient time for panchas to be called and a seizure to be made in presence of panchas. Although, as I said, the law does not make it obligatory, we think it would be advisable on the part of the police in such cases to raid a place or seize incriminating articles accompanied by panchas. The police should as far as possible avoid any suggestion being made that they have not taken all the precautions which are necessary in order to safeguard the liberty of the subject. If the police do not avail themselves of panchas in the last case we were referring to, the result would not be that the police evidence must necessarily be discarded and no conviction can be based on that evidence. But the Court must very carefully scrutinize the police evidence which would be the only evidence before it on which a conviction could be based. If after careful scrutiny the Court is satisfied that the evidence is such as can be safely acted upon, it would certainly be open to the Court to act on that evidence.
5. Mr. Pathare has referred to a judgment of a divisional bench of this Court which has often been referred to in these cases, a judgment delivered by Rajadhyaksha and Chainani JJ., in Emperor v. Sukhrubai Sowar, in Appeal No. 748 of 1948 dated 10th February 1949 and the passage which is relied upon by Mr. Pathare is:
'Having regard to the fact that in cases of this kind allegations are frequently made that the incriminating articles have been planted, we do not think that it would be desirable to normally base a conviction solely on the evidence of the investigating officers.'
Now, this passage must be read in its proper context. In this particular case Rajadhyaksha and Chainani JJ., held that a search in the presence of panchas was obligatory under the law and a search had not been made in presence of panchas. It is on these findings of fact that these learned Judges came to express an opinion on which Mr. Pathare has relied. We do not read this judgment to mean that even in those cases where a search in the presence of panchas is not obligatory the Court cannot act on the evidence of police officers. It is very often apt to be forgotten that the law does not require any corroboration of police evidence. The Court is always zealous to see that the police in their enthusiasm do not lead the Court to convict persons to whom the benefit of reasonable doubt should be given. But when all precautions are taken and when police evidence is carefully weighed and considered, the position in law must ultimately be, and indisputably be, that it is always competent to the Court to act upon the uncorroborated testimony of police witnesses. As I said before, there may be many eases where it would be impossible to have any other evidence except police evidence, and if it were suggested that under no circumstances police evidence can be acted upon without corroboration, it would be impossible for the prosecution tin these cases to bring home the guilt to the accused persons. [The rest of the judgment is not material for the purpose of reporting.]