Chainani, J. - (1.)This is an appeal by the Government of Bombay against the acquittal of two accused persons who had been charged with having committed offences punishable under Clauses (a), (b) and (h) of Section 43 (1) of the Bombay Abkari Act. The facts of the case briefly are that on 7th July 1948, Sub-Inspector D'Souza was on patrol duty at Dharavi Creek along with two Police Constables. He noticed smoke from a distance, got into a toney and went to the place from which smoke was coming. He then saw accused 2 attending to a still. Accused 1 was sitting about 20 feet away from the still. Both the accused tried to run away, but they were chased and arrested. The still and other articles used for manufacturing liquor were seized. The two accused were then sent for trial. The prosecution examined the Sub-Inspector, D'Souza, and a Police Constable, Gangaram, who had accompanied him in order to prove the above facts. Both the accused pleaded not guilty. They stated that they were fishermen who had gone to Dharavi Creek for fishing and that they had been arrested by the Police on suspicion. The learned Magistrate did not disbelieve the evidence given by the two Police officers, but he acquitted the accused on the ground that their evidence had not been corroborated by any other independent and reliable evidence. The Government of Bombay have appealed against the order acquitting the two accused.
(2.)In acquitting the accused, the learned Magistrate had presumably in mind our judgment in Emperor v. Sukhrubai, Cri. App. No. 748 of 1948, D/- 10-2-1949 by Rajadhyaksha J. In that case a small island near Bombay was raided after the receipt of information about the commission of an offence under the Abkari Act. A but on the island was searched and a still was found therein. The search was not held in the presence of the Panchas as required by law and no panchnama was made. The accused denied that he was working any still. The only evidence about the finding of the still was that of the investigating officers. The Magistrate convicted the accused, and in appeal we set aside the conviction. The ground for our acquitting the accused was that the law required that the evidence of investigation officers in such cases should be corroborated by other independent evidence and that that corroboration, which could have been made available by making the search in the manner prescribed by law, was not forthcoming.
(3.)In our judgment, we observed : "Having regard to the fact that in cases of this kind allegations are frequently made that the incriminating articles have been planted, we do not think that it would be desirable to normally base a conviction solely on the evidence of the investigating officer." These observations must be read in the context of the case which was then before us. What we meant was that Court should be slow to act on the uncorroborated testimony of investigating officers in regard to property discovered by them on making a search, when under the law such a search must be made in the presence of two independent and respectable persons. For, as observed by Das J. in Lachmi Narain v. Emperor, 20 Cr. L. J. 742 : (A. I. R. (6) 1919 Pat. 452) (p. 743) : "It is with some object that the Legislature has provided safeguards and when they are deliberately broken it is, in our opinion, not for the accused to show that they have been prejudiced. The prejudice is in our opinion, on the face of the record. They should not have entered the premises without search witnesses, the object being that it may not be in their power to smuggle articles into the house and bolster up a false case against them." The view taken by us is in accordance with that taken by another Bench of this Court in Emperor v. Shanwar Manu Koli, 52 Bom. L. R. 38 : (A. I. R. (37) 1950 Bom. 267). In Emperor v. Mohanlal Bababhai, 43 Fom. L. R. 163 : (A. I. R. (28) 1941 Bom. 149 : 42 Cr. L. J, 556), a panchnama about the identification parade was proved by the police officer who had held the parade. It was held that the panchnama had been improperly admitted in evidence, and the conviction of the accused was set aside. In his judgment, Beaumont C. J. observed (p. 166) : "The object of having panch witnesses is to provide evidence which is independent of the police. . . . Apart from searches, it is, of course, not a rule of law or practice that police evidence must be corroborated; but where one is dealing with an identification parade, and where it is of vital consequence to show that the accused was duly identified, it is obviously desirable, as the police recognize themselves, to have some independent evidence that the parade was properly and fairly held .... I am not prepared to act on the uncorroborated testimony of the police officer as to what took place at this identification parade, particularly as evidence in corroboration was available and not called." These remarks would apply with equal force in cases in which property is discovered after making a search which, under the law, must be made in the presence of panchas.