Jagdish Chandra vs State of Rajasthan

Amaresh Ku. Singh, J.—All the four appeals filed by Jagdish Chandra, Shankerpuri, Bhima and Mahendra Kumar arise from the same judgment dated 22nd July, 1996 passed by the learned Special Judge, N.D.P.S. Act Cases. Raj Samand in Sessions Case No. 30/92 State v. Shankerpuri and Ors. It is therefore, just and proper that all the four appeals should be decided together by a common judgment.

In Sessions Case No. 30/92 State v. Shankerpuri and Ors., Shankerpuri was charged u/s 8 read with 18 of the N.D.P.S. Act Mahendra Kumar was charged u/s 8 read with 20 of the N.D.P.S. Act, Jadgish Chandra was charged u/s 18 read with 29 of the N.D.P.S. Act and Bhima was charged u/s 8 read with 20 of the N.D.P.S. Act. All the accused persons pleaded not guilty to the charge therefore, they were tried by the learned Special Judge N.D.P.S. Act Cases, Rajasamand. After conducting trial the learned Special Judge convicted appellant Shankerpuri u/s 8 read with 18 of the N.D.P.S. Act and sentenced him to under-go rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh and to further under-go rigorous imprisonment for 2 years for default in payment of fine. Appellant Bhima was convicted u/s 8 read with 20 of the N.D.P.S. Act and he was sentenced to under-go rigorous imprisonment for 3 years and to pay a fine of Rs. 5,000/- and to further under-go rigorous imprisonment for 6 months for default in payment of fine. Appellant Mahendra Kumar was convicted u/s 8 read with 20 of the N.D.P.S, Act and he was sentenced to under-go rigorous imprisonment for 3 years and to pay a fine of Rs. 5,000/- and to further under-go rigorous imprisonment for 6 months for default in payment of fine. Appellant Jagdish Chandra was convicted u/s 18 read with 29 of the N.D.P.S. Act and he was sentenced to under-go rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh and to further under-go rigorous imprisonment for 2 years for default in payment of fine. Appellant Jagdish Chandra was further convicted u/s 20 read with 29 of the N.D.P.S. Act and he was sentenced to under-go rigorous imprisonment for 3 years and to pay a fine of Rs. 5,000/- and to under-go rigorous imprisonment for 6 months for default in payment of fine. Feeling aggrieved by the conviction as well as the sentence, Shankerpuri, Bhima, Mahendra Kumar and Jagdish Chandra have filed these four appeals.

The prosecution case may be briefly summarised as below : On 13th September, 1990, Station House Officer of the Police Station, Rajnagar received an information from a Mukhbir that on the preceding night a person named Shankerpuri had gone to the house of Jagdish Chandra Paliwal with opium and Mahendra Kumar as well as Bhima Rewari had gone to the house of Jagdish Chandra for the purpose of purchasing opium and that Jagdish chandra used to keep opium, hemp and ganja in his possession for the purpose of selling to others. On receiving aforesaid information the Station House Officer of the Police Station Rajnagar went to the house of Jagdish Chandra with Police Officers and Motbirs. In presence of the Motbirs Premgiri and Hiralal a search of the house of Jagdish Chandra was conducted. In a room situated on the first floor Shankerpuri handed over 2 packets which were placed in 2 polythene bags. Mahendra Kumar produced Ganja which was contained in ''Punia'' and Bhima Rewari produced hemp which was placed in a bundle. These articles were seized by the Station House Officer who conducted the search. Samples were taken from opium, hemp and ganja and the samples as well as the remaining goods were sealed at the spot. A memo of search and site plan were prepared. Shankerpuri, Bhima, Mahendra Kumar and Jagdish Chandra were arrested vide arrest memo Ex. P-3 to Ex. P-6 and the First Information Report Ex. P-10 was lodged at the Police Station. After conducting investigation a challan was submitted in the Court of learned Special Judge, N.D.P.S. Act Cases, Raj Samand. All the four accused-appellants were charged as mentioned above. They pleaded not guilty to the charges, hence a trial was commenced. During trial the prosecution examined Hiralal (PW-1), Premgiri (PW-2), Brijesh Kumar (PW-3), Udai Singh (PW-4), Jagdish Chandra (PW-5), Mahendra Singh (PW-6), Gopal Singh (PW-7), Bhim Singh (PW-8) and Chetan Prakash (PW-9) in support of the prosecution case. The accused-appellants were examined u/s 313 of the Criminal Procedure Code. No evidence was produced in defence.

Motbir witnesses Hiralal (PW-1) and Premgiri (PW-2) as well as Brijesh Kumar (PW-3) did not support the prosecution story. Udai Singh, A.S.I. (PW-4), Jagdish Chandra (PW-5), Mahendra Kumar (PW-6) and Chetan Prakash (PW-9) supported the prosecution version. These witnesses are the employees of the Police Department. Bhim Singh (PW-8) was examined for proving that 4 samples were deposited in the forensic Science Laboratory, Jaipur. Bhim Singh (PW-8) has deposed that he obtained 4 packets from the Malkhana In-charge and deposited them at the Forensic Science Laboratory, Jaipur.

The learned Special Judge held that the evidence given by the Station House Officer of the Police Station, namely Chetan Prakash (PW-9) and the Police Officers who were present at the time of search were trustworthy and from that evidence it was proved beyond reasonable doubt that the house of Jagdish Chandra was being used for the purpose of selling and purchasing of contraband goods and that the accused persons knew that opium, hemp and ganja were inside the house and that Mahendra Kumar had produced the packet of ganja from the bedding and Bhima had produced ''pudias'' of hemp and Shankerpuri had produced 2 plastic bags containing opium and, therefore, recovery of contraband goods was fully established and in addition to the opium, hemp and ganja 4 ''chilams'' were also recovered by the Police during search from which odour of ganja was coming. He, therefore, convicted all the 4 accused-appellants under the N.D.P.S. Act as mentioned above and imposed various sentences on them.

The learned Counsel for the appellants has submitted that the findings arrived at by the learned trial Court are not supported by the evidence produced by the prosecution because the same is unreliable. Regarding appellant Jagdish the learned Counsel for the appellant has submitted that there is no evidence to show that appellant Jagdish knew about the activities of the remaining appellants and that he took part in the alleged activities of the other three appellants or rented his house to the other three appellants. Regarding remaining appellants it has been submitted that alleged recoveries have not been proved as independent witnesses in whose presence recoveries have been made, have not supported the prosecution story. It is also been submitted by the learned Counsel for the appellant that in this case the prosecution has not proved that the samples which were taken at the time of alleged recoveries were sent to the Forensic Science Laboratory, Jaipur safely and without tampering and, therefore, the report of the Forensic Science Laboratory, Jaipur is not sufficient to prove that the articles from which samples were taken were opium, hemp and ganja as alleged by the prosecution. It is also submitted by the learned Counsel for the appellant that in this case prosecution has not complied with the provisions of Section 42(2) of the N.D.P.S., Act and the omission to comply with the provision of Section 42(2) of the N.D.P.S., Act is fatal to the prosecution.

The learned Public Prosecutor has supported the judgment given by the learned lower Court. Regarding appellant Jagdish learned Public Prosecutor has submitted that Jagdish was in possession of the house from which recoveries were made and in the circumstance of the case he must be held to be possessing knowledge that the remaining three appellants were dealing in contraband goods and that they were in possession of opium, hemp and ganja and that Jagdish must be held to be guilty of the charge framed against him. Regarding other three appellants the learned Public Prosecutor has submitted that Motbir witnesses have turned hostile because they have been won over or for some other reasons they do not want to state the truth and in view of the testimony of the remaining witnesses in whose presence recoveries were made, it must be held that the alleged recoveries were made by the Police Officer from the house of Jagdish. For the purpose of providing that the samples which were taken at the spot were sent to the Forensic Science Laboratory, Jaipur without tampering. The learned Public Prosecutor has relied on the statements given by Mahendra Singh (PW-6), Gopal Singh (PW-7), Bhim Singh (PW-8) and Chetan Prakash (PW-9). It is also submitted by the learned Public Prosecutor that in this case there was no violation of Section 42(2) of the N.D.P.S., Act and even if there was a violation of Section 42(2) of the N.D.P.S., Act no prejudice has been caused to the accused-appellants and, therefore; the case of the prosecution cannot be thrown away on the ground that Section 42(2) of the N.D.P.S., Act was not complied with.

I have carefully considered the arguments advanced by both the parties and perused the record of the case. Hira Lal (PW-1), Prem Giri (PW-2) and Brijesh Kumar (PW-3) have been declared hostile by the prosecution. Hira Lal (PW-1) was contradicted with portion A-B of his statement Ex. P-7 recorded by the Police. Prem Giri was contradicted with portion A-B, CD and E-F of his statement Ex. P-8 recorded by the Police and Brijesh Kumar was contradicted with portion A-B of his statement Ex. P-9 recorded by the Police. In view of these contradictions it must be inferred that these witnesses are concealing truth and their evidence should be discarded as unreliable. Since these three witnesses have been found to be concealing the truth, their statement made in the Court cannot be used for discarding the evidence or remaining witnesses. I have carefully gone through the statements of Udai Singh (PW-4), Jagdish Chandra (PW-5), Mahendra Singh (PW-6), Gopal Singh (PW-7), Bhim Singh (PW-8) and Chetan Prakash (PW-9). there is nothing in the statements of these witnesses to show that their statements are not reliable. In my opinion the statements of these witnesses are reliable and the learned trial Court has not committed any mistake in placing reliance on the statements of above named witnesses. It is, therefore, proper to hold that the Police Officers conducted the search of the house of Jagdish and found Shanker Puri, Mahendra Kumar and Bhima present inside the house and these three persons produced articles which are alleged to be opium, hemp and ganja before the Police Officer who were conducting the search. Shanker Puri produced two plastic bags containing "opium" from inside an almirah, Mahendra Kumar produced a packet of "Ganja" from inside the bedding and Bhima produced "pudias" of "hemp" from inside the "Niwar" of the bed and while the search was being conducted appellant Jagdish also reached there. Four "Chilams" were also recovered and odour of Ganja was coming from them and samples were taken from the seized articles and were sealed then and there. The prosecution story regarding the search as well as recoveries of above mentioned goods from inside the house of Jagdish, is reliable. I, therefore, do not find any force in the submission, that the prosecution story regarding search and recoveries is not reliable.

The next argument of the learned Counsel for the appellants is that the prosecution has not proved that the samples which were taken from the house of Jagdish were sent to the Forensic Science Laboratory, Jaipur safely without tampering. Search was conducted on 13th September, 1990 and samples were taken on the same day. The samples reached the Forensic Science Laboratory, Jaipur on 20th September, 1990. The samples were carried to the Forensic Science Laboratory by Bhim Singh (PW-8) (Constable No. 1390). According to the statement of Bhim Singh he obtained four sealed packets from the Malkhana In-charge with a letter and took them to the Office of the Superintendent, Police and from the office of the Superintendent, Police he carried them to the Forensic Science Laboratory, Jaipur with a letter of the Superintendent, Police and deposited them in the Forensic Science Laboratory, Jaipur and obtained the receipt Ex. P-13. Ex. P-11 is the copy of the letter sent by the Police Station with the samples and Ex. P-12 is the copy of the letter issued by the Superintendent of Police. Ex. P-12 appears to have been issued on 18th September, 1990. Ex. P-11 does not contain the date on which it was issued. There appears to be a delay of about 7 days in taking the samples to the Forensic Science Laboratory, Jaipur from the Office of the Superintendent, Police, Udaipur. a perusal of Ex. P-13 shows that the receipt Ex. P-13 was issued on 20th September, Police, Udaipur. A perusal of Ex. P-13 shows that the receipt Ex. P-13 was issued on 20th September, 1990 and, therefore, it is proper to infer that in fact there was no unnecessary delay in depositing the samples in the Forensic Science Laboratory, Jaipur by. Bhim Singh (PW-8) and the date of the receipt of the samples as given in Ex. P-15 is wrong. Since the statement of Bhim Singh (PW-8) has not been shaken in the cross-examination it is proper to infer that he kept the samples safely in the same condition in which they were given to him and no tampering took place during the period the samples remained in his custody. Ex. P-12, however, shows that from the Office of the Superintendent Police, samples were sent on 18th September, 1990. There was thus a period of 6 days during which the samples remained at the Police Station Rajnagar.

Chetan Prakash (PW-9) has given a statement to the effect that the articles seized by him as well as samples taken by him were deposited in the Malkhana in sealed condition and later on they were sent to the Forensic Science Laboratory, Jaipur through a Constable. there is no reason to disbelieve Chetan Prakash (PW-9) in this behalf.

Mahendra Singh (PW-6) has deposed that on the day when search was conducted he was possessing the key of the Malkhana and he deposited the articles in the Malkhana. In his cross- examination he has revealed that Govind Singh was the Malkhana In-charge. The testimony of Mahendra Singh (PW-6) proves that on 13th September, 1990 he deposited the seized articles as well as the sealed samples in the Malkhana of the Police Station. The Police Officer who performed the duties as Malkhana In-charge during the period from 14th September, 1990 to 18th September, 1990 has not been examined by the prosecution. The learned Counsel for the appellant has submitted that since the Malkhana In-charge has not been examined during trial the possibility that the samples were tampered with during the period from 13th September, 1990 to 18th September, 1990 cannot be ruled out and, therefore, the report of the Forensic Science Laboratory, Jaipur cannot be said to be in respect of the samples which were taken on 13th September, 1990. On the other hand the learned Public Prosecutor has submitted that in the circumstance of the case it should be presumed that the seized articles as well as samples were kept intact and the accused-appellants should not be given benefit of the doubt.

The learned Counsel for the appellant has relied on the observations made by the Supreme Court in Valsala v. State of Kerala 1993 Cri. L.J. 333 in para four of the judgment their Lordships observed as below:

We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing powder and it was analysed to be Brown Sugar. But from the records it is clear and it is also noted by both the Courts below that the seized article was produced in the Court only on 14.1.88 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of PW-6 the Officer-in-charge of the police Station who seized it, there is again nothing to show whether it was sealed and kept there. The learned Counsel for the State no doubt argued that the provisions of Section 55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link. In the Mahazar Ex. P-2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even PW-6 does not say that he continued to keep it in his custody under seal till it was produced in the court on 14.1.88. The evidence given by PW-6 Police Sub-inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the court. As a matter of fact he did not produce it in the court. PW-3, A.S.I, is supposed to have produced the same in the court. But PW 3 does not say anything about this. It is only PW 7, the Circle Inspector who comes into the picture, at a later date, who admitted in the cross examination that the seized article was sent by PW-3 (A.S.I.) to the court and PW-7 in his cross-examination further admitted that he did not even see if the recovered material object was sealed but still he claims that he made the necessary application for sending the material object for chemical examination and it is only through PW-7 that the chemical Examiner''s Report is marked. PW-7 further admitted that he did not even know when it reached the court. We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. Therefore the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to the Chemical Examiner, though this is purely a question of fact but this is an important link. Both the courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the courts can not convict.

In the instant case Govind Singh who was the Malkhana In-charge has not been examined for the purpose of proving that he kept the seized articles as well as the samples safely and without tampering during the period from 13th September, 1990 to 18th September, 1990. The learned Public Prosecutor, however, wants this Court to draw the presumption that the seized articles as well as the samples were kept in regular and proper manner during the aforesaid period and that they were not tampered with.

The crucial question, therefore, is whether in the facts and circumstances of this case the presumption should be drawn u/s 114 of the Evidence Act on the analogy of illustration ''E'' that the seized articles and samples were kept in the Malkhana of the Police Station safely and they were not tampered with before they were sent to the Forensic Science laboratory, Jaipur through Bhim Singh (PW-8). In order the above mentioned question may be decided it would be necessary to decide the submission that omission to produce the Malkhana In-charge is fatal because it was obligatory for the prosecution to examine him and an adverse inference should be drawn u/s 114 illustration ''G'' of the Evidence Act for deliberate omission to examine the Malkhana In-charge.

Section 114 of the Evidence Act reads as under:

SECTION 114--Court may presume existence of certain facts--The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

ILLUSTRATIONS

The Court may presume:

(e) that judicial and official acts have been regularly performed;

(g) that evidence which could be and is not produced would, if be unfavorable to the person who withholds it;

A bare perusal of Section 114 of the Evidence Act shows that presumption under this Section is discretionary in the sense that the Court may or may not draw the presumption under this Section for the purpose of deciding any question of fact. Illustration ''e'' and illustration ''g'' given below in Section 114 of the Evidence Act clearly indicate two rival approaches. Illustration ''e'' indicates that presumption may be drawn that judicial and official acts have been performed regularly and that such a presumption may be drawn without the production of any other evidence. It is also obvious that if the -presumption is drawn on the analogy of illustration ''e'' about the regularity of an official act, there would be no necessity to produce any other evidence for the purpose of proving that the official act was performed in a regular manner. If presumption about the regularity of an official act is drawn the necessity of producing evidence would not arise. On the other hand illustration ''g'' given below in Section 114 of the Evidence Act empowers the Court to draw inference that evidence which could have been produced but has not been produced would, if produced, be unfavorable to the person who with-holds it. Illustration ''g'' thus imposes a duty on the person possessing evidence to produce the same before the Court unless there be a legitimate reason for not producing it. In view of illustration ''g'' it has been held that all material witnesses should be produced by the prosecution and if any material witness has been with-held an adverse inference may be drawn against the prosecution. How these two courses can be re-conciled when they pull in opposite directions. Illustration ''e'' pulls in the direction of presumption that official act was performed in regular manner, without requiring the production of evidence to prove that it was regularly performed and illustration ''g'' pulls in the direction of insisting upon the production of evidence which a party has in its possession and power and drawing of an adverse inference against that party if the evidence is with-held. A way to re-concile these two rival courses indicated by illustration e'' and illustration ''g'' must be found out.

The findings which a Court may give regarding a question of fact may be based on any one or more of the following; (1) direct evidence of the person or persons who have the knowledge about the fact in issue (2) documentary evidence if the document is admissible and duly proved and contains a recital about the fact in issue (3) circumstantial evidence including a chain of circumstances or a bunch of circumstances which may justify the drawing of conclusions about the fact to be proved and (4) mandatory presumption which makes it mandatory on the part of the Court to presume the existence or non-existence of the facts in accordance with the mandatory provisions. It would appear that it is mandatory on the part of the Court to presume in the existence or non-existence of the facts in accordance with the mandatory provisions. It would appear that discretionary presumptions u/s 114 of the Evidence Act are the presumptions based upon circumstantial evidence referred to above. The Court is not bound to draw the presumptions as the power is discretionary.

The fact that a certain act was performed by the person who was a servant or Officer of the State is only one of the several circumstances which are taken into consideration by the Court. The fact that the actions of the servants or officers of the State are supervised by their seniors and some of their actions are governed by law or rules is also one of the several circumstances which the Court takes into consideration for drawing inference u/s 114 of the Evidence Act. Therefore, the inference which the Court draws u/s 114 of the Evidence Act in accordance with illustration ''e'' and illustration ''g'' is the inference or the presumption drawn on the basis of the circumstantial evidence and, therefore, the rules governing circumstantial evidence must be made applicable. It may also be noted that the Courts which decide the question of fact have no personal knowledge about the fact to be decided by them. They arrive at the findings on the basis of direct evidence of those who have personal knowledge about the fact in issue or on expert evidence or on documentary evidence if the document is admissible and duly proved, or on the circumstantial evidence or they decide an issue by drawing the presumption under a mandatory provision of law and by using the principles as to burden of proof. Among these several courses available to the Court for giving a finding on the question of fact, the documentary evidence appears to be the best evidence if the document is admissible and is duly proved and is capable of proving the fact in question beyond doubt. The Evidence Act, therefore, insists that the original document should be produced before the Court for proving the contents there of and neither secondary evidence nor the oral evidence is permitted to be produced in preference to the documentary evidence. Next best evidence is the evidence of persons having personal knowledge about the fact in question. They have to state the facts on the basis of personal knowledge as required by Section 60 of the Evidence Act and if their testimony is found to be reliable, the question of fact may be decided on the basis of their statement in case of oral evidence, persons having personal knowledge about the fact is second best evidence. These two modes are distinguishable from the remaining two modes on the ground that in the two modes mentioned above the Court receives evidence which is direct in the sense that it enables the Court to know the fact in issue directly either by going through the document or by hearing the statement made by witness who testifies u/s 60 of the Evidence Act. The other two modes of ascertaining facts are drawing of inference on the basis of circumstantial evidence or drawing presumptions according to mandatory provisions of law. In both these modes the Court does not have access to that evidence which can give him information about the fact in question. Therefore, Judge is called upon to presume a fact about which neither he has any personal knowledge nor anyone having personal knowledge has given testimony before him. In the case of mandatory presumption the Court is bound to draw the presumption in accordance with law and it is the fact of shifting the burden of proof whatever is presumed by the Court in compliance with mandatory provisions of law need not be proved by the party on whom the burden to prove such fact was placed initially. It is other party who has to dis-prove the fact which has been presumed by the Court in accordance with the mandatory provisions of law. The finding based on such presumptions may not necessarily be close to real truth but they are taken to be true. There is possibility that such presumptions may be rebutted if sufficient and reliable evidence is produced by the other party. These presumptions which are drawn by the Court in compliance with mandatory provisions of law or on the finding based on the circumstantial evidence. The findings based on such presumptions may be rebutted. The presumptions drawn by the Court u/s 114 of the Evidence Act on the basis of circumstantial evidence also suffer from the defect that nobody having direct knowledge about the fact to be proved testifies before the Court. The Court, therefore, takes aid of its own knowledge of laws of nature, human conduct and ordinary course of business for the purpose of arriving at a finding in a given set of circumstances. It is not necessary that circumstances must prove the fact. It is quite possible that the circumstances proved before the Court may not be able to prove a fact at all. In these cases finding would be not that a particular fact has been proved the finding would be that a particular fact has not been proved. In criminal cases every fact which is used for the purpose of bringing guilt home to the accused must be proved beyond reasonable doubt whether it is proved by documentary evidence or by oral evidence or by circumstantial evidence or by drawing presumptions according to any mandatory provisions of law. Therefore, in criminal cases the circumstantial evidence must be such as leaves no room for any doubt and is compatible with one and only one hypothesis namely the hypothesis that the fact in question occurred or did not occur as the case may be. In other words the circumstantial evidence must be of such nature as can prove beyond reasonable doubt the fact in question. It would thus appear that placing reliance upon circumstantial evidence alone is a risky job because the circumstances may or may not convince the Judge about the existence or non-existence of a fact in question. Circumstantial evidence is, therefore, not the best evidence so far as the task of the Judge in ascertaining facts which are in dispute is concerned. It is true that if documentary evidence be missing and oral evidence be unreliable, circumstantial evidence alone can be used for proving a fact and if such evidence proves a fact it may be rightly observed that though the witnesses may speak a lie yet the circumstances do not, but it cannot be denied that if there be documentary evidence which is admissible, duly proved and sufficient or there be oral evidence of persons having personal knowledge about the fact and their testimony be reliable, the circumstantial evidence would be inferior to the documentary evidence or oral testimony. Viewed in above light documentary evidence and oral evidence must be regarded as superior to circumstantial evidence and the party on whom the burden to prove a fact lies should, therefore, produce before the Court the documentary evidence as well as the oral evidence if it is possible to do so for the purpose of proving the fact in question. Courts have therefore, insisted upon the observance of the rule that best evidence must be produced before a Court by the party on whom the burden to prove the fact lies or who is in possession of such evidence. Illustration ''G'' of Section 114 of the Evidence Act assumes most significance if it is realised that documentary evidence and oral evidence of persons having personal knowledge about the fact in dispute are superior to circumstantial evidence on the basis of presumption may be drawn u/s 114 of the Evidence Act because aforesaid documentary evidence and oral evidence enables the Court to ascertain the fact in question with greater certainty and reliability. On the other hand if documentary evidence and oral evidence or persons having personal knowledge about the fact in issue be not available to the party on whom the burden to prove lies, there would be no other way of proving the fact except by producing circumstantial evidence and requesting the Court to draw a presumption u/s 114 of the Evidence Act and the Court may having regard to all the facts and circumstances of the case either refuse to draw the presumption or it may draw the presumption. Illustration ''e'' and illustration ''g'' of Section 114 of the Evidence Act can be reconciled by stating that the best evidence available to a party must be produced before a Court before proving a fact and if this duty is not performed an adverse inference may be drawn in accordance with illustration ''G''. On the other hand if documentary evidence and oral evidence be not available the circumstantial evidence alone can be produced before the Court and the Court may by applying well established principles as to appreciation of circumstantial evidence either draw presumption or may not draw presumption. The public functionaries, may, therefore, abide by the rule that best evidence available to them should be produced before the Court and if for any reason they cannot produce the best evidence they must explain the cause of their inability so that the Court may not draw an adverse inference against them according to illustration ''g'' of Section 114 of the Evidence Act. The obligation to produce documentary evidence and oral evidence before the Court for proving a fact inspite of illustration ''e'' of Section 114 of the Evidence Act arises from the hard reality that circumstantial evidence is inferior to documentary evidence and oral evidence of persons having personal knowledge about the fact in issue and the rule that best evidence should be produced before the Court of law. The Courts, therefore, require that if best evidence is available it must be produced before it.

Even if the Court does not draw an adverse inference according to illustration ''G'' of Section 114 of the Evidence Act on account of non-production of best evidence, there is no guarantee that circumstantial evidence will prove the fact in question because the presumption to be drawn u/s 114 of the Evidence Act is not mandatory and it is the function of the Judge to. see whether in a given set of circumstances he should or should not draw the presumption about the regularity of the official acts.

In this case malkhana In-charge Govind Singh has not been produced in evidence for the purpose of proving that in seized articles and the samples remained intact in the Malkhana of the Police Station during the period from 13th September, 1990 to 18th September, 1990. In the absence of any evidence to show that Govind Singh could not be produced in Court inspite of efforts by the prosecution, it may be inferred that he has been with-held by the prosecution. In fact the list of witnesses which was prepared by the officer In-charge of the Police Station and which was sent with the charge-sheet submitted u/s 173(2) of the Criminal Procedure Code does not contain the name of Govind Singh who was the Malkhana In-charge. It means that the Officer In-charge of the Police Station did not intend to produce Govind Singh before the Court. It is, therefore, a fit case in which an adverse inference should be drawn according to illustration ''G'' of Section 114 of the Evidence Act. Even if for any reason Govind Singh could not be produced in Court it was necessary for the prosecution to produce next best evidence. The record of the Malkhana could have been produced for the purpose of proving that the Malkhana in which the seized articles and their samples had been placed remained under lock any key and the there was not opportunity for anyone to tamper with the articles placed in the Malkhana before the samples were handed over to Bhim Singh (PW-8) for taking them to the Forensic Science Laboratory, Jaipur. The next best evidence which was available has also not been produced. In these circumstances it cannot be inferred that prosecution proved beyond reasonable doubt that the samples of the seized articles were not tampered with during the period from 13th September, 1990 to 18th September, 1990. The possibility that they were tampered with cannot he ruled out and, therefore, it cannot be said that the samples which were sent to the Forensic Science Laboratory, Jaipur were the same as were taken on 13th September, 1990 soon after the search was conducted. Consequently it must be held that the prosecution have failed to prove that the articles recovered by the Police from the house of appellant Jagdish were opium, hemp and ganja.

The submission of the learned Counsel for the appellants is that Section 42(2) of the N.D.P.S. Act., has not been complied with and, therefore, the prosecution case should be thrown away does not appear to be correct. Sub-section (2) of Section 42 of the N.D.P.S. Act, contemplates two kinds of informations which are to be sent to the Immediate Official Superior of the person conducting the search. The first is the information taken down in writing under Sub-section (1) of Section 42 and the second is the ground for his belief under the proviso given below Sub-section (1) of Section 42 of the N.D.P.S. Act. The former information can be sent to the Immediate Official Superior only if the information was taken down in writing. If the information was not taken down in writing there would be no occasion for sending a copy of the same to the Immediate Official Superior under Sub-section (2) of Section 42 of the N.D.P.S. Act. The question of sending the letter would arise only in those cases where a search was conducted between sunset and sunrise without a warrant issued by a Magistrate and grounds for belief were recorded as required by the proviso given below Sub-section (1) of Section 42 of the N.D.P.S. Act. In the instant case the Police Officers reached the house of Jagdish at 6.30 A.M. for conducting search. Search was conducted up to 11.00 A.M. and the Police party departed from the house of Jagdish after completing the proceedings. Since search was conducted during day-time the proviso given below Sub-section (1) of Section 42 of the N.D.P.S. Act was not applicable the information received by Station House Officer, Chetan Prakash (PW-9) does not appear to have been recorded anywhere before conducting the search. Since the information received by him was not recorded by him, a copy of it could not be sent to the Immediate Official Superior. If there was any information compliance of any provision it was non-compliance of Sub-section (1) of Section 42 of the N.D.P.S. Act which requires that the information given by any person should be taken down in writing. However, in the memo of search Ex. P-1 it has been mentioned that information was given by a ''Mukhbir'' at night that Shanker Purl, had brought opium from outside and he was standing in the house of Jagdish Paliwal, and that Mahendra Kumar and Bhima were also visiting the house of Jagdish with a view to transact opium, hemp and ganja.

Whether a secret informant whose identity is not revealed and who is not cited as prosecution witness for proving any fact, should or should not be deemed to be "a person" within the "meaning of Section 42(1) of the N.D.P.S., Act is an important question. There is a presumption that the legislature does not make a provision unless some object is going to be served what is the object behind recording of the information received from a secret agent (mukhbir) whose identity is neither revealed by the Officer receiving information nor whose identity can be ordered to be disclosed in view of Section 125 of the Evidence Act is not clear by the words used in Sub-section (1) of Section 42 of the N.D.P.S. Act. It is, therefore, very doubtful whether a ''Mukhbir'' whose identity cannot be compelled to be disclosed and who cannot be summoned or examined in a Court of law is covered by the expression "person" as used in Sub-section (1) of Section 42 of the N.D.P.S. Act. If the object behind recording of information under Sub-section (1) of Section 42 of the N.D.P.S. Act is to be used such information as a corroborating evidence when the informant is examined in a Court of law, it would have to be inferred that the expression "person" in Section 42 of the N.D.P.S. Act does not include a "Mukhbir" or a secret agent to whom the protection of Section 125 of the Evidence Act applies:

For reasons mentioned above it must be held that the prosecution has failed to prove that the samples which were taken at the house Jagdish on 13th September, 1990 were kept safely without tampering and during the period from 13th September, 1990 to 18th September, 1990 and, therefore, the possibility of the tampering cannot be ruled out. Consequently it cannot be said that the prosecution has proved beyond reasonable doubt that the articles seized by the Police Officer were opium, hemp and ganja.

In the result the appeals deserves to be allowed and are hereby allowed. The judgment dated 22nd July, 1996 passed by the learned Special Judge, N.D.P.S. Act cases is hereby set aside. The conviction and the sentences awarded to the appellants are hereby set aside. The appellants Bhima and Mahendra are hereby acquitted of the charges labelled against them under the N.D.P.S. Act. The appellants are on bail, they need not surrender, their bail bonds are hereby cancelled. The appellants Jagdish Chand and Shankar Puri shall be released for with if not required in any other case.