1. The accused was convicted by the learned Sixth Presidency Magistrate, Saidapet, Madras, under Section 5 of the Madras Prohibition Act for possession of spirit or preparation containing spirit in respect of which he knows or has reason to believe that attempt had been made to render it fit for human consumption. He was sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 750 with default sentence. He appeals from the conviction and sentence.
2. The prosecution case against the accused is this. On information received, P.W. 1 Inspector of Police with a party of persons went to the shop of the accused in Appu Mudali Street. As soon as the police van neared the shop, the accused was found running away. His shop was searched in the presence of two witnesses and a bottle M.O. 1 containing four ounces of liquor was recovered under a mahazar Exhibit P-1. Chemical examination showed that this spirit had been mixed with articles like caoutcheucine and pyridine and the report of the Chemical Examiner was that attempt had been made to make it potable. P.W. 2 corroborated the version of the search and the recovery. The accused's plea was that he was elsewhere in Dindigul at that time and that he knew nothing of the search.
3. He did not examine any defence witness. The learned Magistrate accepted the prosecution case and convicted the accused as stated above and sentenced him.
4. Learned Counsel appearing for the accused-appellant urged that Section 29 of the Madras Prohibition Act has not been complied with before the Inspector of Police proceeded to make the search. That section is analogous to Section 165, Criminal Procedure Code, and states that in case a Police Officer has no time to obtain a proper search warrant, he should make a record of his reasons and grounds of his belief before proceeding to make a search. Admittedly this procedure has not been followed in this case. But the question is whether the failure to follow this procedure has rendered the conviction illegal. The search may be illegal in the sense that a mandatory provision of the Act has not been complied with before making the search. The decision of the Supreme Court in State of Rajasthan v. Rehman 1960 M.L.J. 424 : (196o) S.C.J. 52 . referred to by the appellant's counsel states that a search without complying with Section 165, Criminal Procedure Code is illegal and the respondent in that case was justified in obstructing the officer from making the search and in doing so he did not commit any offence. But that decision does not deal with a position like the one which has arisen in this case, namely, whether an illegal search, will prevent the discovery of a fact made in the course of the search, from being taken into account for the purpose of basing a conviction. I am of opinion that non-compliance with the formalities in Section 29 cannot per se prevent the discovery of a fact during the search from being used for basing a conviction.
5. The other argument of the learned Counsel for the appellant was that Section 5 of the Act requires a necessary ingredient, viz., that the prosecution must prove that the accused had reason to believe that the stuff found in his possession had been rendered potable by admixture of other substances, and that that ingredient is lacking in this case. I am of opinion that the accused's running away from the premises when the police party neared the premises is a ground on which we can infer that he had guilty knowledge in regard to this liquor. According to the prosecution, no other incriminating substance was found in the accused's premises except this particular item of liquor. Therefore, on this ground also, I see no reason to accept the contention of the accused.
6. Regarding the sentence, Section 5 of the Act provides that the accused shall be punished with imprisonment for a term which may extend to six months and a fine of not less than Rs. 750 for a first offence unless the Court finds special and adequate reasons to the contrary which have to be mentioned in the judgment of' the Court. The Court below has given the above sentence. But it has to be pointed out that the quantity of liquor seized is a very small quantity--four ounces.. The accused was a keeper of a drug shop. It was kept in a small bottle. It does not appear as if the accused had a large stock of the stuff in his possession or that he was engaged in a task of distributing the stuff in any large scale to a number of other persons. I think that the minute quantity of the stuff found with him and the absence of any reason to hold that this small quantity came out of a much larger stock are grounds which can be considered in this context for mitigation of the sentence. I am of opinion that in the circumstances of the case the sentence calls for a reduction. I accordingly reduce the sentence to the period of imprisonment which the accused has already undergone and a fine of Rs. 75, in default one month rigorous imprisonment. Time for payment two weeks from the date of receipt of this order by the lower Court.