The judgment establishes the importance of strict compliance with statutory provisions, particularly in the context of conducting searches under the Abkari Act. It also highlights the requirement for officers to provide acceptable explanations for any non-compliance with statutory conditions.

1. On 28-7-1984, petitioner was found carrying a tin containing wash from which the Chemical Examiner, on analysis, detected ethyl alcohol. The petitioner was found guilty of the offence under S.55(g) of the Abkari Act (for short 'the Act') and was convicted and sentenced to undergo simple imprisonment for three months and a fine of rupees one thousand. The conviction and sentence were confirmed in appeal by the Sessions Court. This revision is by the petitioner in challenge of the said conviction and sentence.

2. The Preventive Officer of the Excise Department (P.W.1) conducted a search of the petitioner as the officer had reasonable suspicion that the petitioner was carrying illicit liquor. He opened the tin, smelt and tasted the contents and then he was satisfied that it was illicit arrack. However, he took a sample from the contents of the tin and it was the said sample which was sent for chemical analysis. The officer prepared Ext.P1 mahazar as contemporaneous document evidencing search.

3. PW.3 is the only independent witness who affixed signature in the mahazar. The other signatories in Ext.P1 are the Excise Guards. There is no case for the Preventive Officer that he called any other independent person to attend and witness the search, nor has he a case that none else was available to be called.

4. The main contention raised by the learned counsel for the petitioner is that the search cannot be acted on as the same was not made in compliance with the mandatory requirement in S.36 of the Abkari Act.

"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 persons neither of whom is an Abkari, Police or Village Officer".

If the proviso is mandatory, it has to be considered whether its non-compliance has vitiated the search. The fact is not disputed that the Preventive Officer has not called two persons (neither of whom is an Abkari Officer) to attend and witness the search. Learned Public Prosecutor contended that even if the search is not in compliance with the proviso to S.36, it is still a search and unless there are other reasons to vitiate the search, there cannot be any wide proposition that a search becomes illegal merely because it was not in compliance with the proviso to S.36. Reference is made to the decision in Dominic v. State of Kerala (1989 (1) KLT 601). A Single Judge of this court considered the effect of non-compliance with S.102(3) of the Code of Criminal Procedure. As per the said provision the police officer effecting the seizure should report the seizure to the magistrate forthwith. It was held that irregularity in search and seizure by themselves will not make the evidence inadmissible. Admissibility of the evidence regarding search is not the point of attack in this case. It is the legality of the search which is assailed. The mere fact that the independent witnesses who signed the documents turns against the prosecution during trial does not mean that the occurrence had not taken place as alleged by the prosecution or that they were not present at the time of occurrence. In such cases, a duty is cast on the court to scrutinise the evidence more carefully to satisfy whether the procedural safeguards have been observed (Vide Sivaraman v. State of Kerala, 1981 KLT SN Page 9 (Case 17).

5. Whether the legislature intended a particular provision to be mandatory or merely directory or obligatory depends upon the words used the context and setting in which the provision is made and the purpose for which the provision is enacted. The Abkari Act empowers any officer of the Excise Department or the Police Department to search any person, animal, car vessel or other conveyance, about which he may have reasonable cause to suspect any liquor or intoxicating drugs to be concealed. When a search is made, the