Jurisdiction of Police Officer to make further enquiry before starting of proceedings.

This is a criminal appeal filed against an acquittal by the Joint Magistrate, Tellicherry, in C.A. No. 6 of 1950.

The facts are these:-The accused (respondent before us) lives with his wife in Manathana amsom. On 26th November, 1940, at about 5-30 or 6 p.m., P.W. 1, the Sub-Inspector of Police, Peravur, searched the accused’s house in the presence of P.W. 2 and other witnesses and recovered from inside a single room of the house, one jar M.O. 1 containing 14¾ bottles cf arrack and an empty bottle M.O. 2 which was kept by its side. P.W. 1 took M.Os. 1 and 2 into custody under a search list Exhibit P-1 in the presence of P.W. 2 and one Joseph Kutty who have attested Exhibit P-1. The accused was also in the house at the time of the search P.W. 1 registered a case as Crime No. 25 of 1949 of the Peravur station, prepared the first information report and without further enquiry laid the charge-sheet on 6th December, 1949.

The case for the accused was that on 26th two police constables came to his house and asked him to accompany them to the Police Station, he started for the Police Station that when they reached a place known as Pattanchara the constables took him to the forest nearby and pointed out M.O. 1 which was there and asked him what it was, that the accused stated that he did not know, that he was then asked to carry it to the station and he refused, that the police constables tied up his hands and carried M.O. 1 with the help of one Verghese to the Peravur Police Station.

The accused examined two witnesses both of whom belonged to Manathana amsom and their version has been summarised by the learned Sub-Magistrate as follows:-

“D.W. 1 swears that about two months ago when he was going to Peravur at about 4 p.m and was taking tea at Pottanchira two constables went to the chop and enquired about the locating of the accused’s house. D.W. 1 took the constables to the accused’s house. The accused was there in the house. The constables told the accused that P.Ws. want him to go to Peravur station The accused replied that he will go after sometime. They said that he should go at once and arrested the accused and took him away. The witness followed them. When they had gone about 1½ furlongs they took a jar from the forest and asked the accused to carry it which he refused Then they tied the accused’s hands and took him and the jar with them. After going another half a furlong they had M.O. 1 carried by a cooly one Verghese He further stated thai the Police did not measure the contents of M.O. 1 nor does he know what it contained. Joseph Kutty was not in the accused’s house. About two months age when he was sitting in his varanda he saw two policemen and another going to the accused’s house and returning with the accused after a quarter of an hour He did not see any jar with them. P.W. 1 was also not with them.”

The learned Sub-Magistrate found that the offence had been made out as charged by the prosecution and disbelieved the defence version and convicted the accused to undergo rigorous imprisonment for four months under section 4(1)(a) of the Madras Prohibition Act. The contraband was directed to be destroyed There was an appeal therefrom and the Joint Magistrate, Tellicherry, came to the conclusion that the conviction and sentence of the lower Court could not be supported for two reasons, namely, that there was no enquiry in this case as contemplated by section 38 (3) and secondly that a search in this case was bad, and acquitted the respondent.

The learned Public Prosecutor on instructions from the Government had filed the appeal against the acquittal on the ground that the learned Joint Magistrate erred in holding that there was no compliance with the provisions of section 38(3) of the Madras Prohibition Act and secondly in holding hat there had not been a valid search within the meaning of section 103, Criminal Procedure Code.

I entirely agree with the contentions of the learned Public Prosecutor that on both points the