Dispute as to the articles seized by search officer.

The petitioner in this case is one Abdullah carrying on a petty betel shop business in Gandhi-Irwin Road, Egmore. The prosecution case was that P.W.1, a Sub-Inspector of Police, searched his shop on 1st October, 1949 and seized therefrom 10 bottles (M.O.1) suspected to contain liquor. On analysis, on 12th December, 1949, they were found to contain 14 per cent spirits. The petitioner’s contention before the learned Chief Presidency Magistrate, who tried him, was that the bottles seized from his shop were bottles called Jeeva Bhaskaram, a medicinal preparation exempted by the Madras Government from the operation, of the Prohibition Act and said to contain 02 per cent spirits and manufactured by D.W.1, K.B. Subramaniam, an illiterate man who submitted a bottle of this mixture to the Board of Revenue which tested it and found it to contain 02 per cent spirits, and exempted it from the operation of the Act. D.W.2, a neighbouring shopkeeper, corroborated the petitioner’s version and said that the 10 bottles seized were only bottles of Jeeva Bhaskaram. The learned Chief Presidency Magistrate did not believe the evidence of D.W.2 as he was a neighbouring shopkeeper and a fellow Muslim, and might have been actuated by a desire to make the petitioner escape. He was confirmed in this belief by the fact that D.W.2 stood surety for the petitioner and got him out of jail. The lower Court held that the 10 bottles seized from the petitioner were not bottles of Jeeva Bhaskaram and must have been different bottles containing a higher percentage of spirits. It believed the evidence of P.W.1 that the bottles he seized did not have the label Jeeva Bhaskaram on them, as spoken to by the petitioner and D.W. 2. It also went on to observe that even if the bottles seized were really bottles of Jeeva Bhaskaram, the petitioner would still be liable to be convicted under the Madras Prohibition Act as, on examination by the analyst, the contents of these bottles showed 14 per cent spirits instead of 02 per cent spirits which alone had been found in the Jeeva Bhaskaram bottle submitted to the Board of Revenue and Government for exemption, and exempted from the operation of the Act. D.W.1, the maker of the preparation, said that with long keeping the spirits content of the Jeeva Bhaskaram would go on increasing. The lower Court remarked that even if that were so the petitioner would still be liable, as he should have sold them away before the spirit content increased above 02 per cent, the exempted figure. It, therefore, convicted the petitioner under section 4 (1) (a) of the Madras Prohibition Act, and sentenced him to pay a fine of Rs. 100 or, in default, to undergo rigorous imprisonment for six weeks.

I have perused the records and heard the learned counsel for the petitioner and the learned State Prosecutor contra. The learned counsel for the petitioner urged vehemently that the bottles seized were only, Jeeva Bhaskaram bottles, and not any other bottles, and that the lower Court went wrong in believing the uncorroborated testimony of P.W.1 that they were not Jeeva Bhaskaram bottles, especially when Munuswami Gramani, one of the Panchayatdars present at the seizure was not examined to corroborate P.W.1, and no one else also had corroborated him, and D.W.2, a neighbouring shopkeeper, had sworn that the bottles seized were only Jeeva Bhaskaram bottles. The learned State Prosecutor agreed that Munuswami Gramani ought to have been examined to corroborate P.W.1 in the circumstances of this case. I have no hesitation whatever in holding that, in the circumstances of this case, Munuswami Gramani ought to have been examined if the prosecution relied on its contention that the bottles seized were not Jeeva Bhaskaram bottles. The Madras Prohibition Act gives very great powers to searching authorities, and inflicts very severe punishment on people committing offences under the Prohibition Act. It is therefore of the utmost importance that there should be a sa