Arijit Pasayat, C.J.

Scope and ambit of the proviso to S.36 of the Kerala Abkari Act (1 Karkadagom 1077, corresponding to English calendar 1902) (in short, the act), which was extended to the whole of Kerala with effect from 11th day of May 1967 by Act 10 of 1967)is under consideration. This has become necessary as there was cleavage in view expressed by two learned single Judges. In Ramachandran Nair v. State (1990 (1) KLT 44), it was. held that prosecution had failed to give explanation for non-compliance with the conditions stipulated in proviso to S.36 and, therefore, accused was entitled to acquittal. Contrary view appears to have been taken in Job v. State of Kerala (1991 (1) KLT 491). In view of this divergence, learned single Judge, before whom present petition was placed for hearing, has made a reference to this Court.

2. In order to appreciate the rival contentions, it is necessary to quote S.36:

"36. Searches how to be made:- All searches under the provisions of this Act shall be made in accordance with the provisions of the Code of Criminal Procedure, 1898.

Provided that the persons called upon to attend and witness such searches shall include at least two perso