Shri Premadhar Rajbansi vs The State of Assam

B.L. Hansaria, J.—The challenge in this revision is to the conviction of the Petitioner u/s 5(a) of the Assam Opium Prohibition Act, for short the Act, for the offence of possessing 5 Kg 150 grams of opium. In assailing the same, Shri Das has advanced two main points and two subsidiary submissions. I may first dispose of the minor aberrations to which my attention is invited. It is first contended that acceptance of the recovered articles, as opium on the strength of Exts. 6 and 7 was not permissible as the Chemical Examiner who bad given the certificate had not been examined. There is no force in this submission as Section 293(1) Code of Criminal Procedure, to which I am fairly referred by Shri Das himself, permits such a report to be "used as evidence". That section applies, as provided in Sub-section (4), inter alia, to a Chemical Examiner. Exts. 6 and 7 being report'' of Chemical Examiner, this section has its full application. In view of this, the decision in AIR 1971 Assam and Nagaland 32, to which reference is made by Shri Das, cannot assist the Petitioner as that case had dealt with a report from an Assistant Technical Officer, to which Section 293 would not apply, The decision in Re Marudai AIR 1960 Madras 370 cannot also be called in aid by the Petitioner as in that case the examination of the expert in the Court was desired, because, on the basis of some bones exhumed much after the occurrence, an opinion was given that these belonged to the deceased in the case. This opinion definitely needed to be tested by cross-examination. But in the case at band, the opinion that the article was opium followed almost irresistibly from the finding relating to the chemical tests undertaken. It may also be stated that when the P.Ws. had deposed in the trial Court that the recovered article was opium, there was no challenge on this score.

Another subsidiary submission is about the mode of examination of the Petitioner by the learned trial Court, it is stated that by putting the incriminating circumstances in one question, the Petitioner did not proper opportunity to have his say in the matter. I am not inclined to accept this submission inasmuch as the question, though one, does contain the necessary Incriminating facts by and large. No prejudice at all can be said to have been caused by the mode of examination undertaken by the learned trial Court.

The real attack on the conviction is on the ground that the search undertaken by the Excite Inspector P.W. 3 has violated the relevant provisions of the Act inasmuch as two independent and respectable inhabitant of the locality were not called upon to witness the same. The present cannot, however, be said to be a case where this provision was not complied with in as much as P.W. 2 and one Prafulla Dutta, both of the locality, were called upon to witness the search and seizure. Shri Das, however, contends that of these, only (sic) was produced in the Court, he being P.W. 2, and the other was withheld. The counsel would Say that even P.W. 2 had not fully supported the prosecution case. Whether he has done so or not would be examined later, Let it first be seen whether any illegality in search would make the evidence of recovery inadmissible. This point has been coming off and on before this Court. In Criminal Revision No. 10/78 a Beach of this Court has dealt with this aspect and Shri Das his sought to rely on what has been stated by Dr. T.N. Singh, J., in that case. A perusal of that judgment shows that two decisions of the Apex Court in the main were noted in this context these being K.L. Subbayya Vs. State of Karnataka, ; and Bai Radha Vs. The State of Gujarat, In fact, this aspect has been gone into by the Supreme Court in a number of cases starting from Sunder Singh Vs. State of Uttar Pradesh, In all these decisions, which would be referred in due course, the view taken on this aspect has been that any violation of a provision like Section 100(4), Code of Criminal Procedure requiring calling of two or more independent and respectable inhabiting of the locality to be present at the time of search and seizure would not invalidate the search, the same would only affect the weight of the evidence in support of the search and the recovery, I do not propose to burden this judgment with a large number of renderings on this aspect by the Apex Court as well as by the high Courts To bring home the point it would be enough If reference is first made to Kochan Velayudban v. State of Kerla AIR 1961 Kerala 8, a full Bench decision, wherein a large number of decisions have been noted, and it was concluded that there was nothing in law which makes the evidence relating to an irregular search inadmissible, and once it is found that the evidence of the recovery is reliable, a conviction based on such evidence is not invalid on the ground of irregularity in search.

Some subsequent renderings may now be referred. In Radhakishan Vs. State of U.P., it was stated that only two consequences follow where a search is in contravention of Sections 103 and 165 of the Code of Criminal Procedure (old), whose parallel sections in the Code of Criminal Procedure (new) are Sections 100(1) to 100(8) and 165. The two consequences were said to be that where the search is in contravention of the provision, the same could be resisted by the person whose premise are sought to be searched and secondly the Court in such a situation may be inclined to examine carefully the evidence regarding the seizure It was made clear by this Bench of the 3 learned Judges that beyond these two consequences, no further consequence ensues, and the seizure of the article is not vitiated. Of course, it was emphasised that these provisions are not meant to be disregarded.

I have already referred to Bai Radha in which also the quorum was of three learned Judges. That case was called upon to consider the effect of non-compliance, inter alia with Section 15(2) of the Suppression of Immoral Traffic in Women and Girls Act, which is in pari material with Section 100(4), Code of Criminal Procedure. It was observed by the Court that violation of such a provision would not make the trial illegst and the conviction would not be set asses unless and until some prejudice is shown to have been caused to the accused Petitioner because of the failure to observe the requirements of the provision. Another finding of Bal Redha deserves to be noted and the same is that though a search under the Act could be made where the special officers had recorded his reasons that be had reasonable grounds for believing bat an offences punishable under the Act had been or was being committed, the jurisdiction to search was conferred by the (sic) did not depend upon recording of reasons.

The same view was returned in Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, Constitution, Bench in which it was clearly held that unless issued is an express or use(sic)arily implied provision in the Constitution or other law, the evidence obtained as a result of illegal search or seizure in not liable to be shut out. In taking this view, the Bench referred a large number of decisions-Indian and English. It was stated that the Evidence Act, 1872 which is a law consolidating, defining, and amending the law of Evidence, permits relevancy as the only test of admissibility of evidence it was further observed that it was not open to strain the language of the Constitution, because some American Judges of the American Supreme Court have spelt out certain constitutional protections in this regard from the provisions of the American Constitution. It was finally concluded that so far as this, country is concerned, ill law does not permit exclusion of relevant evidence merely on the ground that it was obtained by illegal search or seizure. It may be pointed out that it was fairly conceded in that case that there was no specific article in our Constitution, like Fourth Amendment of the American Constitution, prohibiting the admission of evidence obtained in an illegal search and seizure. The argument advanced rather was that admissibility of such evidence would be against "the spirit of our Constitution". This contention was, however, rejected.

Before referring the holding in Subbayya two other decisions may be noted. In State of Kerala and Others Vs. Alasserry Mohammed and Others, it was pointed out that even in America there has been a conspicuous departure from its previous decision of about half-a-contury in the application of exclusionary rule of evidence. Reference was made to the case of W.T. Stone and Ors. v. Llyod 1976 (USSC) Bulletin Volume IIB 4840. A very wholesome principle adverted to by Powell, J. was noted and the same may be quoted here also:

Application of the rule thus deflects the truth-finding process and often frees the guilty. The disparity in particular cases between the error commuted by the police officers and the wind-fall afforded to a guilty Defendant by application of the rule Is contrary to the idea of proportionality that is essential to the concept of Justice. Thus, although the rule is thought to defer unlawful police activity in part values, If applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice.

Finally, State of Madras v. Natwar Lal AIR 1990 SC 593 has also held that seizure and trial are not vitiated even if search is illegal.

We may now note the holding in Subhayya, In this decision by a Bench of two learned Judges, the search was held to be without jurisdiction, and its a logical corollary the conviction was held to be vitiated, because the Inspector of Excise had not recorded the grounds of us belief as required in the relevant section before making the search. No earlier decision at all was noted in coming to this concision. As the view taken is. however practically against the decision of the Constitution Bench in. Pooranmal and what was stated in Bai Radha in which is was pointed out, as already noted, that in such a case the jurisdiction to starch conferred by statute, and is not derived from the recording of reasons, which was also the opinion in State of Rajasthan v. Rahman AIR I960 SC 210, the holding in Subhayya, cannot over-ride divisions by larger Benches including one by a Constitution Bench.

Because of all these, it is held that even an illegal search would not make the evidence relating to recovery in admissible unless there be some specific provision in any statute to the contrary which is found missing in the Act, It is a different matter that if the search be illegal, the person whose premises is being searched may obstruct the same end in so doing he would not commit offence as stated in The State of Rajasthan Vs. Rehman, Here, also, it may be pointed out that the person conducting search cannot be compelled to do acts contrary to their volition as held in Shyam Lal Sharma, etc. Vs. State of Madhya Pradesh,

This being the position in law, the trial cannot be said to be vitiated because of any irregularity, or even illegality, in the search conducted by P.W. 3. As this Court is sitting in revision, the evidence led in the case relating to recovery cannot be re-examined and re-appreciated. It is enough to say that P.Ws. 1 and 3, the excise officials were duly supported in this regard by P.W. 2. The fact that P.W. 2 had signed the seizure memo subsequently at the excise office at Naharkatia, is not sufficient to hold that he was not present at the spot, According to P.W. 1 this had happened because P.W. being called of nature, had to leave the (sic) when seizure memo was being prepared. It may also be (sic)ted that though P.W. 2, statements in cross-examination would (sic) as if the seizure memo itself was prepared at Naharkatis as might have deposed about it as he had not seen preparation of the same the spot for the above reason. It may be noted that ttio memo bears the signature of the accused also, and P.Ws. 1 and 3 were not challenged when they deposed that the memo was prepared at the spot. As to non-examination of the other non-official seizure witness, the learned Public Prosecutor states that sufficient steps were taken to procure bis attendance, but somehow summons could not be served on him as recorded in order passed on 22.8.75. This apart, reference may be made In this context to AIR 1946 16 (Privy Council) in which an argument was raised that as the two witnesses who had seen the articles being recovered were not examined, the trial was vitiated. Their Lordships rejected this contention, by observing that there was "no obligation compelling a counsel for the prosecution to call all witnesses who speak of facts which the crown desire to prove".

It was also contended by Shri Das that P.W. 2 is not an independent witness as he was present when house of one Sueur was searched, which as per the counsel, shows that he was a pet witness of the department and not an independent person. To meet this objection, the learned Public Prosecutor has referred to State of Maharashtra Vs. P.K. Pathak, wherein no fault was found with the evidence of P.W. 9 though he was a witness to various recoveries made by police. It has also been observed in this judgment that evidence of custom officials cannot be rejected merely because they are officers of the department unless there be "any serious infirmity in the intrinsic merits of their testimony". No such infirmity is brought to my notice.

Provision of Section 28(1) of the Act has also to be noted, as it requires the accused to account satisfactorily of the opium found in his possession. It is in the following terms:

28, Presumptions-(1) In trials under Clauses (a) to (c) of Section 5, it shall be presumed, unless and until the contrary is proved, that the accused has committed the offence with which hi is charged In respect of the opium for the possession of which he fails to account satisfactorily.

(2).***

I, therefore, do not read any infirmity in the conviction because of any irregularity or illegality in the search. Shri Das''s further contention is that, in any case, the prosecution has failed to conclusively establish that the opium had been recovered from the exclusive possession of the Petitioner. In this context, he has referred to Abdul Ali v. State of Assam Criminal Appeal No. 176163 noted In 1965 SCN 389 where the opium was found in the luggage boot of a taxi whose key was with the driver. It was held that it could not be accepted merely because of the possession of the key that the driver was in conscious possession of the opium. The facts of the present case arc entirely different. The opium was found in the granaries of the Petitioner, which were inside the residential compound. The aluminum jug in which about 3 1/2 kg of opium was found had even been embe-used beneath the earth of the granary Shri Das contends that the house being situated near the road, the same was accessible to others. A house has to be accessible to others, but that is no ground to hold that the recovered article found inside the house had been planted by an outsider. If the recovery be in an open field, the matter may be different. But the same cannot be said about recoveries inside a house unless there be some circumstances, which have to be brought on record by the accused, to show that there was reasonable ground for believing that some other inmate had done so, or some outsider had planted the article inside the house of the accused to falsely implicate him with the crime. Nothing of this nature is available on record.

In view of all the above, the conviction as awarded cannot be interfered with by this Court sitting in revision. This leaves for consideration the question of sentence which was awarded is imprisonment for 18 months and fine of Rs. 1,000.00. It is contended by Shri Das that the Petitioner is by now aged 65 years and is almost paralytic and blind. There is nothing to show the latter aspect. As to the age, it is contended by the learned Public Prosecutor that the same was recorded as 42 years in statement u/s 313 Code of Criminal Procedure taken in 1975. In the supporting affidavit to the revision application filed in this Court, the age has been shown as 60 in 1978. The affidavit (sic) merits acceptance In preference to what has been recorded in. the statement u/s 313 Code of Criminal Procedure. Keeping in view the age and the submissions advanced about the ill-health of the Petitioner the substantive sentence of imprisonment is reduced to R.I. for six months, but the fine is enhanced to Rs. 2,000,00. In default of payment of fine, the accused Petitioner will undergo imprisonment for a period of another six months.

With the above modification in sentence, the petition is dismissed. The Petitioner''s bail bond is cancelled he will surrender forthwith to serve out the sentence as ordered herein If the Petitioner be really. I have no doubt that the jail authorities would take due care of him.