JUDGMENT - Chainani, C.J.

(1) This is an appeal by 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 28th January 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. The two police witnesses admitted in their evidence that many persons were going on he 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.

(3) 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 Shanwar Manu v. Emperor, 52 Bom LR 38: (AIR 1950 Bom 267) and Emperor v. Kisan Narayan, 52 Bom LR 280: (AIR 1951 Bom 186). 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.

(4) 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 hand, 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 useful 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 be 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 p

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