Patturaju and Others vs The Station House Officer, Oomangalam

Sathar Sayeed, J.—These three petitions have been filed under S. 482, Cr.P.C. to quash the order, dt. 1st April 1977 in Crl.R.C. Nos. 50,

51 and 52 of 1976 respectively on the file of the Court of Sessions, South Arcot Division.

The petitioners herein were charged under S. 4(1)(g) of the Tamil Nadu Prohibition Act and sentenced to rigorous imprisonment for a period of

two months on each of the three accused by the learned Judicial Second Class Magistrate, Vridhachalam by his judgment dt. 23rd August 1976.

The prosecution case was that on 23rd March 1976 at about 6:30 a.m. near Merkiruppu village near Veda Kallai footpath, these three petitioners

were found each carrying a mud pot containing about 15 litres of fermented wash fit for distillation of arrack. They were therefore, charged under

S. 4(1)(g) of the Tamil Nadu Prohibition Act. When questioned, these petitioners denied the offence. Therefore, evidence was let in by the

prosecution. According to the prosecution, when they were conducting raids near Merkiruppu Village, they found the three accused going towards

east each carrying a mud pot on their heads. On suspicion P.W.1 stopped them and found each pot to contain 15 litres of fermented wash fit for

distillation. This was also attested by P.W.2, another constable, as no independent witness was available at that spot. The materials that were

found in the pot were sent for chemical analysis which proved that they contained self generated wash and it was found to be fermented wash. The

learned Magistrate, after going through the evidence and also the reports of the Chemical Examiner, found the petitioners guilty of the offence and

convicted and sentenced them to rigorous imprisonment for a period of two months each. Against that, the petitioners herein preferred Criminal

Appeals before the Chief Judicial Magistrate, Cuddalore. The learned Chief Judicial Magistrate, on going through the evidence, confirmed the

conviction and sentence imposed by the learned Judicial Second Class Magistrate, Vridhachalam. Aggrieved by the decision of the Chief Judicial

Magistrate, the petitioners herein have filed Crl. R P. Nos. 50 to 52 of 1976 before the Sessions Judge, Cuddalore. The learned Sessions Judge,

after going through the evidence and also the reports of the Chemical Examiner, confirmed the conviction and sentence. It is as against this, the

petitioners have, now preferred these three petitions invoking the inherent jurisdiction of this Court contending that the ends of justice have not

been secured by them and there is abuse of process of law by the decisions of the Courts below.

Learned Counsel for the petitioner contends that S. 32 of the Tamil Nadu Prohibition Act specifically states that the mahazar has to be attested

by two or more witnesses. So, on this point, he contends that the Courts below have not concentrated their mind over this section.

The matter has been looked into by three Courts, and the lower appellate Court has considered this matter and has specifically stated that the

section does not stipulate attestation by any independent witness. In, this case, the police party went round conducting prohibition raids in a place

where no independent witnesses were available. In the peculiar circumstances of this case, since no witnesses were available, another Head

Constable has attested this. No doubt, the entire evidence of the attestor who is a police Constable or a police official should not be relied upon.

But, the circumstances were such that while conducting raids, no witnesses were available. Under such peculiar circumstances of the case, another

Constable, P.W.2, has attested the mahazar, and I do not think that the decision of the Courts below particularly when three courts have judged

and carefully considered the matter, warrants interference by this Court to quash the orders of the Courts below. These three Criminal

Miscellaneous petitions are, therefore, dismissed.

I may state that such things should not happen. If the police official seizes any material or if the articles seized like fermented wash are destroyed

at the spot, it is desirable that the mahazer prepared either for seizure or for destruction should be attested by two or more independent witnesses.

Justice must be felt to be just if democratic legality is to animate the rule of law."" If the invisible audience sees a man''s case as the present one,

where attestation of the seized fermented wash is by a police constable, there will be a chorus holding that democratic legality has not been

followed or applied to animate the rule of law It is for the Legislature to amend the second proviso of S. 32(c) of the Tamil Nadu Prohibition Act

accordingly.

The learned Judicial Second Class Magistrate has convicted the petitioners to rigorous imprisonment for a period of two months each, by his

order, dt. 23rd August 1976 which was confirmed by the Chief Judicial Magistrate and also by Sessions, Judge, Cuddalore Two years have since

elapsed. The petitioners have suffered mental agony by filing the appeals and revisions and thereafter came to this Court to quash the orders of the

Courts below. They have learnt sufficient lesion in this matter and they have also suffered imprisonment for a few days. Under the circumstances

the sentence imposed on them by the Judicial Second Class Magistrate is modified to that of the period already undergone by them.