P.D. RAJAN, J.

1. These appeals are preferred against the conviction and sentence in S.C. No. 352 of 2003 of Additional District and Sessions Judge (Adhoc), Fast Track-I, Pathanamthitta for offence punishable u/s.55(a) and (g) of Abkari Act. The appellants are accused 1 to 3 in the above case and they were sentenced to undergo rigorous imprisonment for a period of 4 years and to pay a fine of 1 lakh in default, simple imprisonment for two years each for the offence punishable u/s.55(a) of the Abkari Act, and to undergo rigorous imprisonment for two years and to pay fine of 1 lakh, in default, simple imprisonment for two years each for the offence punishable u/s.55(g) of the Abkari Act.

2. The facts necessary for the indictment were that on 13.8.1999 at 1 p.m., when the Excise Inspector and Party of Adoor Excise Range Office were on patrol duty, they got reliable information that the appellants were manufacturing illicit arrack in Chellakottu Veedu, House No. XI/454 of Ezhamkulam Panchayath. On the basis of that information, they arrived at the place of occurrence and detected the offence. After completing investigation, they laid charge before Judicial First Class Magistrate Court, Adoor, from where it was committed to Sessions Court, Pathanamthitta for trial.

3. To prove the offence, the prosecution examined PWs 1 to 5 and admitted Exts.P1 to P10 in evidence and marked Mos 1 to 4 series as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning u/s.313 Cr. P.C. Appellants were heard u/s.232 Cr. P.C. DW1 and DW2 were examined in support of their defence and Ext.D1 was marked while cross examination of PW1. The trial Court, after analysing the oral and documentary evidence, convicted the accused.

4. The learned counsel appearing for the appellants contended that the search and seizure were conducted by the Excise Inspector, violating the benevolent provisions of Code of Criminal Procedure. Two respectable independent witnesses of the locality had not participated in the search. Their presence is necessary, because the ownership and possession of the searched house is vested in another person. The offence was detected in a place where large number of people reside. In such a situation, presence of independent witnesses is necessary to prove search and seizure. There is no evidence to show that the house was in possession of the first accused (appellant in Criminal Appeal No. 115/2005). Actually, the house was in possession of one Markose, who was not arrayed as an accused in this case. There was no independent evidence to prove search and seizure.

5. While dealing with search and seizure, it is clear that PW5 conducted search on 13.8.1999, at 1 p.m., on the basis of reliable information, while conducting patrol duty. His evidence shows that he conducted an urgent search in Chellakottu Veedu, house No. XI/454 of Ezhamkulam Panchayath with the Excise party, at that time 2nd and 3rd appellants were found distilling arrack in the kitchen and they seized 15 litre of boiling wash and 500ml of illicit arrack. The house was in the possession of the first accused for which they prepared Ext.P1 mahazar. After seizure of the arrack and wash, he registered a crime and occurrence report. Ext.P8 is the occurrence report. Ext.P9 is the property list and Ext.P6 is the search list. Appellants were arrested and Exts.P7, P7(a) and P7(b) are the arrest memos prepared in this case. They were produced before Court as per Ext.P10 remand application. PW1, who was the Assistant Excise Inspector, accompanying the Excise Inspector throughout the search and seizure, supported the evidence of PW5. Analysing the oral evidence of PW1 and PW5, it is found that after recording the reasons and ground of belief, they seized arrack and wash from house No. XI/454 of Ezhamkulam Panchayat, without obtaining a warrant from Magistrate.

6. In urgent cases, it may not be possible for the officer to ob