Irregularities in the search and recovery process do not automatically render the evidence inadmissible or invalidate the conviction. The prosecution must prove the accused's exclusive possession and corroborate evidence to establish guilt beyond doubt.

1. This revision is directed against the conviction and sentence of the accused in C. C. No. 324/59 on the file of the Second Class Magistrate, Neyyattinkara which had been confirmed by the District Magistrate of Trivandrum. The accused had been charged for offences punishable under S.8 (1) (a) and 8 (1) (g) read with S.16 of Act XIII of 1950.

2. The prosecution case briefly stated is as follows: - On 4-3-1959 at 8 A.M., the flying squad Excise

Inspector, Trivandrum and his patrol party got information that illicit manufacture of arrack was going on in the house No. K.P. 4-348 in Karumkulam Desom in the possession of the accused. Pw. 2 thereupon prepared a search memo Ext. P2 and proceeded to the house with two independent witnesses of the locality. When the party reached about 50 feet north of the house, the accused was found getting out from the western room of the house with a copper vessel M.O.1. The accused ran towards the southern direction. The party pursued him. After having run for about 100 feet the accused suddenly dropped M.O.1 on the ground and escaped.

3. Thereafter Pw. 2 took into custody M.O.1 and returned to the house. They then conducted a search of the house in the presence of the witnesses and took into custody all the material objects marked in this case. M.O.1, copper vessel which had been dropped down by the accused was found to contain one nazhi of wash used for the manufacture of arrack. On a search from the western room, an earthern pot which had the smell of alcohol was recovered. Other implements used for the manufacture of arrack were also taken into custody. In the eastern room there were 10 earthern pots containing large quantities of wash. Then it is stated that the excise officers questioned the persons present there and ascertained the name of the person who had run away. They prepared Ex. P1 mahazar and it was attested by the witnesses. Pw. 3, Preventive Officer corroborated the evidence of Pw. 2. Pw. 4, one of the attestors when examined in chief admitted that the excise party had raided the house and prepared the mahazar Ext. P1 and that he had signed it. In cross-examination he, however, stated that at the time when the excise people came, large number of persons were present there, but the accused was not there and that the accused was a person known to him before. The prosecution therefore treated the witness as hostile and cross-examined him. The remaining attesting witness, the President of Karumkulam Panchayat was not examined as he was not available for examination even though coercive steps had been taken for securing his presence.

4. The accused denied the offence and stated that he was not in possession of the house which was searched and he denied the entire prosecution case. The learned Magistrate on a consideration of the evidence found that the accused was in exclusive possession and occupation of the house and that the prosecution has succeeded in proving the case against the accused. The accused was therefore convicted under S.8 (1) (a) and (g) of the Act. On appeal the learned District Magistrate confirmed the conviction and sentence. Aggrieved with the order, the accused has come up in revision. This case was referred to the Full Bench as important questions of law were involved in the ease and also for clarification of a Division Bench ruling of this Court reported in 1958 K.L.T. 966.

5. The main point that was argued by the learned counsel for the defence is that the mandatory provisions contained in S.165 and 103 of the Code of Criminal Procedure have not been complied with and therefore the trial is vitiated and the conviction is bad.The argument is that the search being not conducted strictly in accordance with the provisions of S.165 and 103 Crl. P. C., the evidence discovered by the search becomes inadmissible and the conviction based on such inadmissible evidence is unsustainable. It was further contended that if the search witnesses are not examined, the ev