Anna Chandy, J.:— This revision arises out of a conviction under Section 8(1) of the Travancore-Cochin Prohibition Act (Act XIII of 1950). The case against the two accused, is that they were found in possession of arrack in violation of the provisions of the Prohibition Act. The 1st accused was sentenced to undergo rigorous imprisonment for 4 months and the 2nd accused to pay a fine of Rs. 200/-. It is the prosecution case that P.W 1, the Excise Inspector, accompanied by P.W 2, the Preventive Officer and a few Excise Guards went to the house of the first accused when the 2nd accused jumped out of the house into the courtyard with a bottle of arrack and the 1st accused was found seated in the verandah and on searching the house two bottles containing arrack were recovered. Ext. P.1 is the search mahazar prepared by P.W 1 regarding the search and recovery. It purports to have been attested by three independent witnesses of whom two were examined as P.Ws 3 and 4. P.Ws 3 and 4 do not support the alleged search or recovery. However on the evidence of P.Ws 1 and 2, the court found that the accused were in possession of illicit arrack and therefore convicted them. That conviction was upheld in appeal. The revision petition is by the 1st accused.
2. The main contention raised in revision is that the conviction is no based on legal evidence. The learned counsel for the revision petitioner based his arguments mainly on a decision of this Court reported in State v. ??? (A.I.R 1959 Kerala 98 : 1958 K.L.J 868). That was also a case under the Prohibition Act where the accused was convicted for being found in possession of liquor in his house being searched by the Excise Officers.
3. In that case, the search list was attested by two independent witnesses of whom one alone was examined in Court. His evidence was discarded as being thoroughly worthless and unreliable and the court held that the search cannot be acted upon as it was unsupported by evidence from two or more respectable inhabitants of the locality as required by Section 103 of the Criminal Procedure Code. In that case also the officer who conducted the search gave evidence in support of it and it was urged that a conviction could be based on his evidence. Repelling this argument His Lordship Sankaran, J. held that:
“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. This is particularly so in respect of offences under the Prohibition Act. Under this Act large powers have been conferred on the Prohibition officers in the matter of conducting house searches and also in the matter of arresting persons found to be contravening the provisions of the Act. The legislature appears to have been conscious of the possible dangers that may follow from the misuse of that power and that obviously is the reason why a special Section like Section 34 was inserted in the Act to regulate the manner in which searches under the Act have to be conducted.”
4. It was argued by the learned Public Prosecutor that the rejection of the evidence of the Excise Officers who conduct searches, on the ground that they are interested in the case, would lead to miscarriage of justice especially in a case like this, where the officers had conducted the search in the presence of neighbours, though due to the intervention of the accused, the witnesses subsequently turned hostile. That argument is not without force and there may be actually cases where the officers conducting the search might have taken particular care in securing two respectable neighbours to be present at the search and to attest the search list and where the witnesses later turn hostile and suppress the truth in order to help the accused. However any possible prejudice to the prosecution would not justify the non-enforcement of the salutary provisions of the Act introduced with a view to safeguarding the liberty of the citizens of the land. A way out of the difficulty would be for the prosecution not to be satisfied by merely declaring such witnesses hostile but to subject them to a searching cross-examination and bring out circumstances which would enable the court to find that the witnesses are deliberately suppressing the truth in order to help the accused. Unless shown to be biased, persons who give evidence before court that they have not witnessed the search but simply signed the search list at the instance of the officers, cannot be presumed to be speaking falsehood, for it is not impossible to find instances where searches are conducted by Excise Officers Without taking the trouble of getting at respectable neighbours to witness it and subsequently securing the signature of one or two persons who could - be easily prevailed upon to give them. In this case both P.Ws 3 and 4 give evidence that they were not present at the search and have not witnessed the arrack bottles being recovered from the house of the 1st accused. They swear that they were standing on the road when they were asked to sign the mahazar. The house of P.W 3 is about 5 furlongs away from the accused's house and that of P.W 4 three-fourth of a mile away. It has also come out in evidence that there are seven or eight houses close to the 1st accused's house and no explanation is forthcoming as to why the presence of any one of these neighbours was not secured and no reason is given for preferring P.Ws 3 and 4 to the immediate neighbours of the accused. There is also nothing in their cross-examination by the prosecution to indicate that they were in any way interested in the accused nor is it shown how the accused came to prevail upon them to give evidence in the manner they did. Under these circumstances, and in view of the Division Bench ruling of this Court, I do not think it safe to uphold the conviction of the accused based solely on the evidence of P.Ws 1 and 2 who are the prosecutors.
5. In the result, I allow this revision and set aside the conviction and sentence.