The State Of Maharashtra v. Kuppuswamy Murgesh Acharya

Chainani, C.J:— This is an appeal by the State against the acquittal of the opponent, who was prosecuted for committing an offence punishable under s. 66(1)(b) of the Bombay Prohibition Act.

2. The prosecution story as deposed to by two prosecution witnesses, Sub-Inspector Nagori and police constable Shriram Keshav Ghag, is that on the evening of January 28, 1962, at about 6-30 p.m they detained the opponent-accused on suspicion, when he was passing along Mahatma Gandhi Road in Goregaon. He was then carrying a hand-bag, in which a bladder containing liquor was found. The accused in his statement denied that he was carrying any liquor. Mahatma Gandhi Road is a crowded locality.

3. The two police witnesses admitted in their evidence that many persons were walking in the road when they detained the accused and that they had not made any attempt to make a panchnama. As no panchnama was then made, the learned Magistrate refused to rely on the evidence of these two police witnesses. He, therefore, acquitted the accused.

4. The question whether a conviction can in such cases be based on the uncorroborated testimony of police officers has been considered by this Court in Emperor v. Shanwar Manu Koli . 1949 52 Bom. L.R 38. and Emperor v. Kisan Narayan…Accused . 1949 52 Bom. L.R 280.. It has been held in these cases that where it is incumbent under the law to make a search in the presence of the panchas, but it is not so made, the Court will be slow to act and will ordinarily not base a conviction on the uncorroborated evidence of police officers alone. The reason for this is that corroboration of the police officers' evidence, which the law requires should be made available, is not forthcoming. There may, however, be cases in which circumstances may render it impossible to comply with the provisions of law in regard to search in the presence of panchas. A police officer may suddenly come across a working still at a place at or near which no other persons are available. In such a case it will not be reasonable to expect that the police should not perform their duty until they could find the panchas, in whose presence they could conduct the search or seize the incriminating articles. Consequently in such cases it will be open to the Court to act on the evidence of the police officers and convict the accused, if the Court is satisfied that their evidence is true.

5. Cases, in which it is not obligatory to make a search in the presence of panchas, may be divided into three classes: (i) Those in which the police act on prior information; (ii) those in which panchas are easily available and the search can be made or the articles can be seized in their presence; and (iii) those in which due to the time or the place at which the search is made or for some other reason panchas are not available and a search cannot be made or the articles cannot be seized in their presence. In the first two classes of cases, although the law does not make it obligatory, it is desirable that the search should be made or the articles should be seized in the presence of panchas. Even where it is considered necessary to take immediate action, as for instance when a person is seen carrying a bottle of liquor in his hands, the panchas should be called as soon as may be possible after he is detained and the bottle seized. They may not be witnesses to the actual seizure, but they would be able to support the testimony of police officers that the accused was detained at the particular place and that they had seen the articles there. Police must avoid creating the impression that they are reluctant to place before the Court independent evidence about the search or about the seizure of the articles. It would also then foe more difficult for the accused to deny the seizure of the articles from him or to make allegations in regard to the conduct of search. If, however, in such cases the police do not avail themselves of the panchas, the result would not be that the police evidence must be discarded and the accused acquitted. The absence of independent evidence may weaken the prosecution case, but the police officers, are competent witnesses and the law does not require that their evidence must always be corroborated. In each such case the Court will have to carefully examine and scrutinise the evidence of the police officers, bearing in mind the fact that independent evidence, which could have been produced, is not available, and if after exercising due care and caution the Court comes to the conclusion that their evidence can safely be relied upon, the Court can proceed to act on that evidence and convict the accused.

6. In the third class of cases where it is not possible to make a search in the presence of the panchas, the only evidence before the Court will be that of the police officers. If after weighing this evidence the Court finds that it is reliable, it may proceed to convict the accused.

7. So far as the present case is concerned, Mahatma Gandhi Road, on which the accused is said to have been found, is a crowded locality. A panchnama, could, therefore, easily have been made. No explanation is forthcoming why no such panchnama was made. The absence of the panchnama, therefore naturally weakens the prosecution case. The learned Magistrate has observed:

“Therefore, I am inclined to hold under the circumstances that it is unsafe to rely on police evidence alone, though it may appear true, to convict the accused.”

8. These observations of the learned Magistrate are not correct. If, notwithstanding the fact that no panchnama was made, the learned Magistrate was satisfied that the evidence of the police officers was true, he should have convicted the accused upon it. It appears, however, that the learned Magistrate was not so satisfied. Although, therefore, the learned Magistrate was not right in his view that the accused should be acquitted merely on the ground that the panchnama had not been made, we do not think that this is a case in which we should interfere.

9. The appeal is, therefore, dismissed.

10. Appeal dismissed.