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Kochan Velayudhan Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 203 of 1959
Judge
Reported inAIR1961Ker8; 1961CriLJ70
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 102, 103, 165 and 439; Evidence Act, 1872 - Sections 134; Travancore Cochin Prohibition Act, 1950; Constitution of India - Articles 301 and 304
AppellantKochan Velayudhan
RespondentState of Kerala
Appellant Advocate K.S. Sebastian, Adv.
Respondent AdvocatePublic Prosecutor
DispositionAppeals allowed
Cases ReferredState of Bombay v. R. M. D. Chamarbaugwala
Excerpt:
criminal - revision - criminal procedure code, 1898 - high court should not interfere with findings of fact specially in case of concurrent findings of fact by lower facts - in exceptional cases high court can interfere with findings of fact - exceptional cases are such in which courts below has not applied minds properly to defence set up by accused. - - have not been complied with and therefore the trial is vitiated and the conviction is bad. 8. regarding the failure to send the records to the magistrate, we must say that no foundation has been laid in the evidence for sustaining this argument. emperor, air 1928 cal 27 where a grievance was made as to failure of the prosecution to put two search witnesses into the witness box, the learned judges held that it was not fatal to the.....govinda menon, j.1. this revision is directed against the conviction and sentence of the accused in c. c. no. 324/59 on the file of the second class magistrate, neyyattinkara which had been confirmed by the district magistrate of trivandrum. the accused had been charged for offences punishable under sections 8 (1) (a) and 8 (1) (g) read with section 16 of act xiii of 1950.2. the prosecution case briefly stated is as follows: -- on 4-3-1959 at 8 a. m. the flying squad excise inspector, trivandrum and his patrol party got information that illicit manufacture of arrack was going on in the house no. k. p. 4-348 in karumkulam desom in the possession of the accused. pw. 2 thereupon prepared a search memo ext. p2 and proceeded to the house with two independent witnesses of the locality. when the.....
Judgment:

Govinda Menon, J.

1. This revision is directed against the conviction and sentence of the accused in C. C. No. 324/59 on the file of the Second Class Magistrate, Neyyattinkara which had been confirmed by the District Magistrate of Trivandrum. The accused had been charged for offences punishable under Sections 8 (1) (a) and 8 (1) (g) read with Section 16 of Act XIII of 1950.

2. The prosecution case briefly stated is as follows: -- On 4-3-1959 at 8 A. M. the flying squad Excise Inspector, Trivandrum and his patrol party got information that illicit manufacture of arrack was going on in the house No. K. P. 4-348 in Karumkulam Desom in the possession of the accused. Pw. 2 thereupon prepared a search memo Ext. P2 and proceeded to the house with two independent witnesses of the locality. When the party reached about 50 feet north of the house, the accused was found getling out from the western room of the house with a copper vessel M. O. 1. The accused ran towards the southern direction. The party pursued him. After having run for about 100 feet the accused suddenly dropped M. O. 1 on the ground and escaped.

3. Thereafter Pw. 2 took into custody M. O. 1 and returned, to the house. They then conducted a search of the house in the Presence of the witnesses and took into custody all the material objects marked in this case. M. O. 1, copper vessel which had been dropped down by the accused was found to contain one nazhi of wash used for the manufacture-of arrack. On a search from the western room, an earthen pot which had the smell of alcohol was recovered. Other implements used for the manufacture of arrack were also taken into custody. In the eastern room there were 10 earthen pots containing large quantities of wash.

Then it is stated that the excise officer questioned the persons present there and ascertained the name of the person who had run away. They prepared Ex. P1 mahazar and it was attested by the witnesses. Pw. 3, Preventive Officer corroborated the evidence of Pw. 2. Pw. 4, one of the attestors when examined in chief admitted that the excise party had raided the house and prepared the mahazar Ex. P1 and that he had signed it. In cross-examination he, however, stated t hat at the time when the excise people came, large number of persons were present there, but the accused was not there and that the accused was a person known to him before. The prosecution therefore treated the witness as hostile and cross-examined him. The remaining attesting witness, the President of Karumkulam Panchayat was not examined as he was not available for examination even though coercive steps had been taken for securing his presence.

4. The accused denied the offence and stated that he was not in possession of the house which was searched and he denied the entire prosecution case. The learned Magistrate on a consideration of the evidence found that the accused was in exclusive possession and occupation of the house and that the prosecution has succeeded in proving the case against the accused. The accused was therefore convicted under Section 8(1) (a) and (g) of the Act. On appeal the learned District Magistrate confirmed the conviction and sentence. Aggrieved with the order, the accused has come up in revision. This case was referred to the Full Bench as important questions of law were involved in the case and also for clarification of a Division Bench ruling of this Court reported in State v. Pappachan 1958 Ker LT 966 : (AIR 1959 Kerala 98).

5. The main point that was argued by the learned counsel for the defence is that the mandatory provisions contained in Sections 165 and 103 of the Cr. P. C. have not been complied with and therefore the trial is vitiated and the conviction is bad. The argument is that the search being not conducted strictly in accordance with the provisions of Sections 165 and 103 Cr. P. C., the evidence discovered by the search becomes inadmissible and the conviction based on such inadmissible evidence is unsustainable. It was further contended that if the search witnesses arc not examined, the evidence regarding the search and the recovery evidenced by the seizure list becomes inadmissible in evidence, and that inthe absence of corroboration, the evidence of search officers cannot be relied upon to sustain a conviction.

6. Section 42 of the Travancore-Cochin Prohibition Act, Act 13 of 1950 provides that:-

'All searches under the provisions of this Act shall be made in accordance with the provisions of the Cr. P. C.'

Section 165 refers to searches conducted by the officers without a warrant from the Magistrate. The section provides that if a police officer making an investigation has reasonable grounds for believing that anything necessary for the Purposes of an investigation may be found in any place and that such a thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying the thing for which search is to be made, search, or cause a search to be made.

Sub-section 4 provides that the provisions of the Code as to the search-warrants and the general provisions as to searches contained in Sections 102 and 103 shall, so far as may be, apply to a search made under Section 165. Sub-section 5 enjoins that, copies of and record made under Sub-section (1) or Sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same.

7. The complaint that is made in this case is firstly that the grounds of the officer's belief have not been recorded and secondly that copies of the record made under Sub-section (1) have not been sent to the nearest magistrate. Both these grounds arc untenable, Ext. P2 is the search memo. It is stated therein that Pw. 2 had credible information and reasonable grounds for believing that illicit manufacture of arrack was going on in house No. K. P. 4-348 in Karumkulam desom by Velayudhan and that if there is delay in effecting the search there is likelihood of the contraband being removed. It is the subjective satisfaction of the officer that is required and he has mentioned the gist of the grounds of his belief as to why immediate search was necessary. The learned counsel for the petitioner was not able to tell us as to what, according to him, would be the proper grounds.

8. Regarding the failure to send the records to the Magistrate, we must say that no foundation has been laid in the evidence for sustaining this argument. When the officers Pws. 2 and 3 were in the witness box, they were not questioned whether the records were forthwith despatched to the magistrate. From the mere fact that the seizure list and the search memo alone were produced and marked in the case, it cannot be presumed that the record had not been sent to the Magistrate and that there has not been compliance with the provisions of Section 165(5), Cr. P. C. No such point seems to have been raised in the courts below and in the absence of any evidence we would be justified in resorting to the presumption that all official acts have been regularly performed.

9. There is also no contravention of the provisions of Section 103, Cr. P. C. Before making the search the officer had with him 2 respectable inhabitants of the locality. Pw. 4, one of the witnesses had admitted that he was present at the time the officers searched the house and recovered the incriminating articles. The other witness was the President of the Panchayat and it is seen that the prosecution had taken even coercive steps to secure his attendance in court. Both these witnesses have attested the seizure list Ext. P1. The objection seems to be that the only search witness who has been examined has not supported the prosecution and that the courts below have gone wrong in relying on the evidence of the search officers alone to sustain the conviction.

10. Now assuming that there was contravention of the provisions contained in Sections 103 and 165 Cr. P. C., and the search was thereby defective the decisions have uniformly held that it will not vitiate the trial or make the evidence of the search officers inadmissible in evidence.

One of the earliest cases is the case in Barindra Kumar Chose v. Emperor, ILR 37 Cal 467. It was contended in that case that the evidence discovered by the search was not admissible as the search was hold in disregard of the provisions of the Code. The court while disagreeing with the contention that the searches were illegal held that even on the assumption that they were illegal, the evidence was not inadmissible. The learned Chief Justice stated that, 'what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in which the provisions of the Criminal Procedure Code were disregarded'.

11. A Full Bench of the Madras High Court in Solai Naik v. Emperor, ILR 34 Mad 349 also was of the same view. In that case a police officer conducted a search at a place beyond his station limits and the question was raised whether' that search list could be admitted in evidence and other evidence of the search could be let in. It was held that even though the search might be illegal, the evidence was not inadmissible.

12. In Emperor v. Allahdad Khan, ILR 35 All 358 a Division Bench of the Allahabad High Court set aside the order of acquittal stating that whether the search was legal or not there was evidence in the case that the accused had kept contraband articles in his house and that the accused should therefore be convicted.

13. In another case Hari Narayanan Chandra v. Emperor, AIR 1928 Cal 27 where a grievance was made as to failure of the prosecution to put two search witnesses into the witness box, the learned Judges held that it was not fatal to the prosecution. They referred to sub-section 2 of Section 103 which expressly lays down that no person witnessing the search under the section shall be required to attend the court as a witness of the search unless specially summoned by it and that the discretion is left to the court to require or not the attendance of such witnesses. Their Lordships also said that 'the important question is whether or not the incriminating articles were in the house when the police went to search it. If that is so, it would not matter in the least, whatever irregularities might have been committed in the conduct of the search'.

14. In Bonomali Bhattacharjee v. Emperor, AIR 1940 Cal 85 it was stated that notwithstanding the failure to comply with the provisions relating to a search, but when once the evidence has been be-lieved it is obviously no defence to say that the evidence was obtained in an irregular manner and thatthere was nothing in law which makes such evidence inadmissible.

15. In Legal Remembrancer of Bengal v. Mamtaz Uddin Ahmed, ILR (1947) 1 Cal 439 also it was held that even though in conducting a search the procedure laid down in Section 103 Cr. P. C. is not strictly followed, the evidence discovered by the search does not thereby become inadmissible nor does the conviction based upon such evidence become illegal. It may be only reasonable to view with more than ordinary caution the evidence of those persons who made the illegal search.

16. In Malak Khan v. Emperor, AIR 1946 PC 16 an argument was raised that the two witnesses who saw the articles being recovered should have been called by the Crown and failure to examine them vitiated the trial. Their Lordships stated:

'The presence of witnesses at a search is always desirable and their absence will weaken and may sometimes destroy the acceptance of the evidence as to the finding of the articles, but their attendance at the search is not always essential in order to enable the evidence as to the search to be given'.

Regarding the non-examination of the two attesting witnesses, their Lordships held:

'Though as a general rule, all Crown witnesses should be called to testify at the hearing of the prosecution, but important as it is there is no obligation compelling a counsel for the prosecution to call all witnesses who speak to facts which the crown desire to prove'.

17. In Indu Bhusan Chatterjee v. The State, (S) AIR 1955 Cal 129 a Division Bench of the Calcutta High Court following the Privy Council case and the earlier Calcutta case held that:

'Non-compliance with the strict provisions of Sections 103 and 165 does not make the evidence as to the result of the search inadmissible'.

18. In Pyli Yaccob v. State, AIR 1953 Trav Co. 466 it was held that:

'Once it is found that the evidence of the recovery of articles in a search conducted under Section 165 is reliable the fact that the search was illegal would not vitiate the trial or prevent a conviction being made'.

19. The Bombay High Court in State v. Raoji Kalogi Kadam, AIR 1956 Bom 528 observes:

'From the bare circumstance that the search was illegal it does not follow that the case against the accused had not been proved. However much the court may like to discourage over-enthusiastic citizens from carrying out illegal searches, when the matter is brought before it, the court must scrutinise the evidence and find out whether the offence is proved or not. In dealing with evidence of a search which is illegal, the court would have to examine the evidence very carefully, eliminate the possibility that the search may have been the result of private malice and then decide whether the search and the evidence relating to the discovery of incriminating material has been proved beyond a reasonable doubt'.

20. In a recent case In re, Govindan Nair, AIR 1959 Mad 544, Ramaswamy, J., has observed as follows:-

'Section 163(5) Cr. P. C. requires that copies of any record of a search made shall forthwith be sent to the nearest magistrate empowered to take cognizance of the offence. The provisions of Sub-section (5) have been introduced only as an additional safeguard to protect individuals against general or roving searches and that the action of the Inspector in not sending the record to the nearest magistrate but to another magistrate was bona fide and since it did not result in prejudice to the accused, the irregularity did not vitiate his conviction'.

It was also held that:

'The non-compliance with the provisions of Section 103 Cr. P. C., would not render the search illegal. The circumstance would only affect the weight of the evidence in support of the search and the recovery and it would not affect the legality of the search itself. The weight to be attached to the evidence depends on the circumstances of each case. If the court is satisfied, as to finding of articles irregularity of search is no bar to conviction. Evidence found in an illegal search is not inadmissible in evidence'.

21. In Ramrao Ekoba v. The Crown, AIR 1951 Nag 237 Hemeon, J., held that:

'Although the failure to comply with the provisions regulating searches may cast doubts upon the bona fide of the officers conducting the search, there is nothing in law which makes the evidence relating to an irregular search inadmissible and a conviction based on such evidence is not invalid on that ground alone'.

22. The Assam High Court in Lalbahadur Keshi v. State, AIR 1957 Assam 74 also expressed the same view. If the search is defective it cannot be said that ipso facto the evidence of the search is inadmissible and a case based upon the search must necessarily fail. The evidence as to the recovery of the article is not inadmissible nor the conviction based upon such evidence illegal, but what is required is that it may only be reasonable to view with more than ordinary caution the evidence of those persons who made the illegal search.

The other High Courts also have taken the same view.

23. We have also the authoritative pronouncement of the Supreme Court in Sundar Singh v. State of Uttar Pradesh, (S) AIR 1956 SC 411. It was held:

'Assuming that the witnesses who actually witnessed the search were not respectable inhabitants of the locality, that circumstance would not invalidate the search. It would only affect the weight of the evidence in support of the search and the recovery. Hence at the highest the irregularity in the search and the recovery, is so far as the terms of Section 103 had not been fully complied with, would not affect the legality of the proceedings.

It only affected the weight of evidence which is a matter for courts of fact and the Supreme Court would not ordinarily go behind the findings of fact concurrently arrived at by the courts below'.

24. The learned counsel for the petitioner has brought to our notice the decision in State of Rajasthan v. Rehman, AIR 1960 SC 210. The question that arose for decision was whether the order of the Munsiff-Magistrate, Hinduan, acquitting the appellant of the charge under Section 353 I. P. C., was proper or has to be set aside. In that case admittedly the reasons for the search were not recorded as contemplated under Section 165(1) of the Cr. P. C. His Lordship Subba Rao, J., held that:

'Section 165 of the Code lays down various steps to be followed in making a search. The recording of reasons is an important step in the matter of search and to ignore it is to ignore the material part of the provisions governing searches. If that can be ignored, it cannot be said that the search is carried out in accordance with the provisions of the Code of Cr. P. C.; it would be a search made in contravention of the provisions of the Code'.

Therefore it was held that the search so conducted in contravention of the provisions of Section 165of the Code was illegal. There was no occasion toconsider the effect of the recovery of the incriminating articles in pursuance of that search. Being anillegal search the respondent in obstructing the public servant from making such a search did not commit any offence and therefore the acquittal wasconfirmed.

Therefore the argument that the evidence of the search and recovery ought not to have been admitted, as the mandatory provisions have not been complied with cannot be accepted.

25. The learned counsel for the petitioner has referred us to a decision in Dinkar Nhanu v. Emperor, AIR 1930 Bom 169 where two of the Panchas were not actually present at the time the search was conducted and their Lordships held that:-

'Where the failure to comply with the provisions of Section 103 leave the evidence in an unsatisfactory condition, so that there is reasonable doubt as to whether the offending articles were really in the possession of the accused, the conviction ought not to be sustained'.

This decision does not however Jay down any different principle from the one stated in AIR 1946 PC 16.

26. Reference was also made to the decision in Emperor v. Balai Ghosh, AIR 1930 Cal 141 where an observation is made that, an officer who is connected with the investigation cannot be deemed to be an entirely satisfactory witness for the purpose of proving the search and emphasising that the object of the section is presumably to obtain as reliable evidence as possible of the search, and to exclude the possibility of any concoction, or malpractice of any kind.

This decision does not refer to the earlier Full Bench decision of the same court and there is no discussion as to why the police officer should be considered as not entirely satisfactory witness to prove the search in a case where panchas are not examined. With great respect we are unable to follow the above two rulings.

27. Reference was then made to the Division Bench ruling of this High Court in 1958 Ker LT 966 : (AIR 1959 Kerala 98). In particular the learned counsel referred to the following observation of His Lordship Sankaran, J., as he then was:

'The evidence of the prosecutor may or may not be reliable. All the same, it cannot be denied that it will be extremely unsafe and risky to convict an accused solely on the strength of the evidence of the prosecutor'.

Basing the argument on this observation it is argued that it has been laid down in that case that in cases where the search officer's evidence has not been corroborated by the evidence of the independent witnesses no conviction can be sustained on the testimony of the prosecutor alone even if the search would have been conducted strictly in accordance with Section 103, Cr. P. C. We do not think that such a broad proposition of law was ever intended to belaid down in that decision. The observation was only in respect of the particular facts in that case and cannot be taken as laying down any general rule of law.

The learned Judge himself in a later decision Neelkantan Kunju Raman v. Public Prosecutor, 1960 Ker LT 704 : 1960 Ker LR 580 upheld the conviction of an accused on the evidence of the search officer alone, where the witnesses had turned hostile and did not support the prosecution.

28. Our attention was also drawn to certain other Single Bench decisions of this court, State v. George Fernamliz, 1959 Ker LT 768; Adam Khani v. State, 1959 Ker LT 801; Patchan Chellappan v. State, 1960 Ker LT 271 : 1960 Ker LR 169. But in none of these cases has it been laid down that under no circumstances could a search officer's evidence be accepted without corroboration. Those decisions were based only on the peculiar facts of those oases.

29. In Emperor v. Kisan Narayan, AIR 1951 Bom 186 a Division Bench of the Bombay High Court expressed itself in the following terms;

'It would be open for the court to convict the accused on the evidence of police officers alone if after examining that evidence carefully the court feels satisfied that it is true'.

30. Likewise in In re, Govinda Reddy, AIR 1958 Mys 150 and in State of Himachal Pradesh v. Booti Nath, AIR 1956 Him Pra 26 it is stated that the law nowhere says that the testimony of a police 01 excise officer should necessarily be discarded unless it is corroborated by a non-official.

31. A similar argument that the evidence of the police officers should not be accepted without calling for corroboration was advanced in the case in Aher Raja Khima v. State of Saurashtra, (S) AIR 1956 SC 217. His Lordship Venkatarama Ayyar, J., stated:

'Pausing here, it will be seen that in discussing the question of the recovery of the blood-stained axe, as indeed throughout the judgment, the learned Sessions Judge has taken up an attitude of distrust towards the police for which it is difficult to find any justification in the evidence -- an attitude which, I regret to say, is becoming a growing feature of judgments of subordinate Magistrates'.

'When at the trial, it appears to the court that a police officer has, in the discharge of his duty, abused his position and acted oppressively, it 'is no doubt its clear duty to express its stern disapproval of his conduct. But it is equally its duty not to assume such conduct on the part of the officer gratuitously and as a matter of course, when there is, as in this case, no reasonable basis for it in the evidence or in the circumstances'.

32. The contention that the court should insist on plurality of evidence is much too broadly stated. Section 134 of the Evidence Act lays down that no particular number of witnesses shall, in any case, be required for the Proof of any fact and this embodies the well recognised maxim that evidence has to beweighed and not counted. It would depend upon the circumstances of each case and the quality of the evidence of the witness that is produced before the court. If such testimony is found by the court to be entirely reliable, there cannot be any legal impediment to the conviction of the accused on the testimony of one witness alone. This has been laid down in Vadivelu Thevar v. The State of Madras, (S) AIR 1957 SC 614.

33. The learned counsel for the petitioner also faintly argued that the Prohibition Act particularly S. 8 is ultra vires, unconstitutional and void. What is argued is that even though the State is empowered to impose reasonable restrictions upon the free flow of 'trade, commerce or intercourse' in the public interest no law for this purpose can be introduced in the State Legislature without the previous assent of the President, and in as much as this Act was not introduced in the State Legislature with the previous sanction of the President as required by Article 304(b) proviso of the Constitution this Act has to be struck down as unconstitutional.

Article 301 of the Constitution says that subject to the other provisions of this Part, 'trade, commerce and intercourse' throughout the territory of India shall be free. Section 304 says:

'Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law ........

(a) ......................

(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the Public interest: Provided that no Bill or amendment for the purposes of Clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President'.

The operation of the proviso to Article 304(b) is not attracted to this Act, regard being had to the true nature and scope of the Act. The Proviso will apply only if the Act imposes restrictions on the freedom of 'trade, commerce and intercourse' as declared in Article 301 of the Constitution. This Act in its pith and substance prohibits only the use and consumption of intoxicating liquors, as the latter are deleterious to the health of the people and undermine public morals. It concerns itself only with the enforcement of 'Prohibition' and this subject is within the competence of the State Legislature -- Vide Entry 8 in list II, Schedule VII.

The Act is not meant to affect, nor does it affect, directly, the free flow of men or goods from one part of India to another or to put barriers in the way of free trade in India, so as to hit directly the freedom of trade enshrined in Article 301 of the Constitution, The protection afforded by Article 301 is confined to such activities as may be regarded as lawful trading activities. It does not extend to an activity in respect of anything which is 'extra commercium'. The expression 'trade, commerce and intercourse' does not embrace activities which are inherently pernicious viz., trafficking in women, hiring of goondas to commit crimes, gambling etc. ('Liquor' is not a legitimate article of trade and freedom of trade in liquor is not protected by Article 301). An Act which restricts or even prohibits trade in liquor, therefore need not satisfy the procedural requirements of Article 304 for its validity. Reference may be made to the decision in State of Bombay v. R. M. D. Chamarbaugwala, (S) AIR 1957 SC 699 and Cooverjee B. Bharucha V. Excise Commr. and the Chief Commr., Ajmer, AIR 1954 SC 220. Therefore this argument is without substance and fails.

34-35. (His Lordship considered the merits of the case.)

36. As a general rule the High Court will not in revision interfere with a finding of fact and this is specially so, in the case of concurrent findings of the fact of the lower courts. But in special and exceptional circumstances the High Court is entitled to go into questions of fact and do justice, though the power should be sparingly exercised. Where it is clear that the courts below have not applied their minds properly to the defence set up by the accused and the identity of the prisoner is not satisfactorily proved and consequently there has been a failure of justice it is necessary for the High Court to interfere. On a perusal of the entire evidence and the circumstances and Probabilities of the case, we are not satisfied that the prosecution has succeeded in proving the case against the accused free from doubt. There may be room for grave suspicion that the accused is really guilty, but suspicion, however strong, cannot take the place of Proof.

In the result, the Revision Petition is allowed,the conviction and sentence passed on the petitioneris set aside and he is acquitted.


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