Panchapakesa Ayyar, J.
1. The petitioner in this case is one Sethuram Naidu who was the first accused in C.C. No. 288 of 1947 on the file of the Joint Magistrate, Coonoor. The second accused in that case was one Madana Gopalan, the petitioner's younger brother. Both of them had been put up under Section 4(1)(a) and (i), read with Section 7, of the Prohibition Act, and were convicted by the Joint Magistrate of Coonoor. The petitioner was sentenced to undergo rigorous imprisonment for three months for each of the offences, and the sentences were directed to run concurrently. He was also asked to pay a fine of Rs. 500 for each offence in addition to the sentence of imprisonment. His brother, the second accused, was fined Rs. 500 for each offence, as he was only aged 20 and a sentence of imprisonment was considered to be not called for.
2. On appeal, the Additional Sessions Judge, Coimbatore, set aside the convictions and sentences of the second accused on both the counts, giving him the benefit of the doubt as he held that there was no corroboration regarding him, of the evidence of P.W. 1, an. accomplice, though he considered P.W. 1's evidence to be true. He confirmed the conviction of this petitioner for the offence under Section 4(1)(i), and the sentence passed thereunder with some slight modification regarding the default imprisonment, as he considered that there was sufficient corroboration, regarding him, of the evidence of P.W. 1, the accomplice.
3. The facts, according to the prosecution, are briefly these. The petitioner is the proprietor of the National Radio Shop, Ootacamund, and lives in a house called Mayfield. The second accused, his younger brother, lives with him. At 8-30 a.m. on 28th October 1947, P.W. 5, the Circle Inspector of Police, Ootacarmmd, learnt from an informant (possibly Basha Sait, an enemy of the petitioner) that the petitioner was stocking White Horse whisky and offering it for sale at Rs. 50 a bottle. As prohibition had begun to be enforced in Ootacamund from 1st October 1947, P.W. 5 gave the informant Rs. 100, in marked five rupee and ten rupee currency notes, keeping a note of the numbers on a slip of paper (Ex. P. 4) and asked him to go and purchase two bottles of White Horse whisky from the petitioner. At 9-30 a.m. P. W. 5 and two Sergeants went to the Ootacamund Cafe (some five minutes' walk from P. W. 1's shop) and waited there. P. W. 1, who is addicted to drink for years and years and was a friend off the petitioner and was indebted to him for Rs. 6000 on promissory notes, and another Rs. 150 on a hand loan, took the money from the informant and gave it to the petitioner in his radio shop and asked him for two bottles of whisky 'for a friend' (Basha Sait whose name was not mentioned to the petitioner). The petitioner then rang up his brother, the second accused, who went to the shop, from his house 'Mayfield' and was asked by the petitioner to give P. W. 1 two quarter bottles of 'White Horse whisky. Then the accused, who has been acquitted by the lower appellate Court, is said to have taken P. W. 1 to 'Mayfield'. P. W. 1 was made to wait there in the bed room of the petitioner. After ten minutes, the second accused took and gave him two bottles of White Horse whisky in card board boxes M. Os. 1 and 2. The boxes were damp, evidently because they had been buried underground, as drunkards are said to appreciate wine and whisky buried underground as being of superior quality. P. W. 1 was alleged to have gone with the two bottles, later on, to the petitioner's shop. The petitioner was then said to have asked him, 'Have you got the bottles?' and P. W. 1 was said to have replied, 'Yes'. Then P. W. 1 went and sat in a car belonging to Basha Sait, who must have sent him, in consultation with P. W. 5, for purchasing the whisky in order to entrap his enemy, the petitioner, outside the Ootacamund Cafe. P. W. 5 and his sergeants, who were waiting there for P. W. 1, went out and demanded of P. W. 1 what he had with him. He replied that he had two whisky bottles, and took them out of his trouser pockets and handed them over to P. W. 5. P. W. 5 then searched 'Mayfield' but could not recover anything incriminating. He searched 'Ardene Lodge', a neighbouring house belonging to another man, and re. covered a bottle of White Horse whisky, of the same type as these two bottles and said to have been buried there by P. W. 1.
4. It is obvious that, in the circumstances, the main thing to consider is, as Mr. K.S. Jayarama Aiyar for the petitioner has urged, whether the evidence of P. W. 1, which was undoubtedly that of an accomplice had been sufficiently corroborated by untainted evidence to warrant the conviction of the petitioner. The prosecution relied upon two pieces of corroboration, namely, the recovery of the two bottles of whisky from P. W. 1 some ten minutes after their alleged sale to him, and the recovery by P. W. 5 of the marked notes, given by P. W. 5 to the informant, from the petitioner who, however said that they had been given to him by P. W. 1 towards the hand loan of Rs. 150 due to him and not for two bottles of whisky. P. W. 1, admittedly, owed the petitioner a hand loan of Rs. 150 in addition to the promissory note loans aggregating to Rs 6,000. Both these pieces or corroboration suffer from grave infirmities and defects, as urged by Mr. K.S. Jayarama Aiyar. (After discussion of evidence the judgment proceeds:)
Unfortunately, in this case, P. W. 5 and his sergeants did not lie in hiding and catch, the second accused in the act of handing over the two bottles to P. W. 1, or hear the petitioner ask the 2nd accused to go and deliver the bottles to P. W. 1, or hear him ask P. W. 1, later on, at the shop, if he had received the two bottles. The story of P. W. 1 that he went to the shop after receiving the bottles from the 2nd accused, at Mayfield, sounded pointless, and as meant only tfor implicating the petitioner fully in this case. The evidence of accomplices, informers, approvers, and decoys ought to be scrutinized very carefully and accepted only when fully corroborated. There is no satisfactory evidence to prove the handing of the two bottles to P. W. 1 by the 2nd accused, and the lower Court seems to have erroneously thought that the petitioner handed over the bottles to P. W. 1. The second accused has been acquitted. There is no corroboration of P. W. 1's evidence that the petitioner asked accused 2 to go to the house and give the bottles, or of the petitioner's asking p. W. 1, at the shop, after he had got delivery of the two bottles from the second accused at the house, 'Have you got the bottles now?', and P. W. 1's replying 'yes'. Nor was any whisky bottle recovered from 'Mayfield' though, if the petitioner was a regular trafficker in such bottles, as alleged by the prosecution, it might be reasonable to find some more bottles there.
5. The evidence of P. W. 5 and others in the case is not directly to the point; and everything depends on the evidence of P. W. 1 and the corroborative evidence referred to above. It follows that, in the circumstances the petitioner deserves to be given the benefit of the doubt and acquitted, though there is a lot of suspicion against him (as also against accused 2, who was acquitted), as P. W. 1's evidence has not been sufficiently corroborated by untainted evidence. The undoubted rule of Court, which has now ripened almost into a rule of law, is that, in the absence of sufficient corroboration by untainted evidence, the evidence of accomplices, informers, and decoys should not form the basis of a conviction in a criminal case.
6. I, therefore, acquit the petitioner, by giving him the benefit of the doubt, and cancel his bail bond, and direct the fine, if paid, to be refunded to him.