State of Madhya Pradesh vs Gulam Nabi Vaheed

Gulab C. Gupta, J.—This appeal, filed u/s 378(1) and (3), Criminal Procedure code, is directed against acquittal of the respondent for offence punishable u/s 9-A of the Opium Act (hereinafter referred to as the ''Act''), by judgment dated 16-2-1982, passed by Shri N.P. Agarwal, Judicial Magistrate, First Class, Burhanpur, in Criminal Case No. 440 of 1977.

Prosecution allegation against the respondent was that on 14-3-1977, while travelling by Indore Akola bus, he was found in possession of 10 Kgs. of opium at motor stand, Burhanpur, which constituted an offence punishable u/s 9-A of the Opium Act. The opium was seized from respondent''s possession vide Ex. P-2, which was recorded in the presence of two witnesses. Thereafter, the respondent was arrested, Report of the Assistant Chemical Examiner, Neemuch (Ex.P-1) indicated that the sample sent to them was found by qualitative and quantitative analysis to be opium within the meaning of Section 3(ii) of the Act. After investigation, the respondent was put on trial as aforesaid.

During the trial, the prosecution examined P.W. 1 Shyambihari, P.W. 2 Premchand and P.W. 3 Ramesh singh to prove the seizure of opium from the respondent. P.W. 4 B.S. Chauhan was examined to prove recording of F.I.R. and sending of sample for chemical examination. The respondent denied everything, including seizure of ticket and opium from him. The learned Magistrate, relying on evidence of Chemical Examiner''s report (Ex.P-1), held that the seized article was opium, to which the provisions of the Act applied. The learned Magistrate, however, found that evidence of P. Ws. 1 and 3, viz., Shyambihari and Rameshsingh was cryptic and not sufficient to be accepted. The learned Magistrate refused to place any reliance on P. Ws. 2 and 4, viz., Premchand and B.S. Chauhan, as they were police witnesses. That is how the respondent was granted benefit of doubt and acquitted.

Submission of the learned counsel for the appellant-State is that evidence on record fully proves seizure of opium from possession of the respondent and the learned Magistrate has unjustifiably and illegally held to the contrary. The approach of the learned Magistrate that P.W. 1 Shyambihari was a person of lower status and, therefore, unbelievable, is vehemently criticized The conclusion of the learned Magistrate that this witness was carrying on his business because of favour from the police, is cited as prejudicial approach of the learned Magistrate. The learned counsel for the respondent, however, submitted that report of the Chemical Examiner (Ex.P.1) was not admissible, as it has not been proved that the person giving the report was actually the Chemical Examiner. Relying on State of Rajasthan Vs. Daulat Ram, , it is submitted that no one has been examined to prove how the opium sample was handled before it was sent to the Chemical Examiner. Relying further on Kaur Sain vs. State of Punjab, AIR 1974 SC 329, it is submitted that seizure witnesses were known to the police and, therefore, cannot be accepted as impartial. It is also submitted that this being an appeal against acquittal this Court would not be justified in taking a different view of the evidence than the one taken by the trial Magistrate.

As far as powers of this Court hearing an appeal against the judgment of acquittal are concerned, the same remains crystallized by several decisions of the Supreme Court, viz., Kanu Ambu Vish Vs. The State of Maharashtra, , Jadunath Singh and Others etc. Vs. State of Uttar Pradesh, , Jai Ram and Others Vs. State of U.P. and Another, and Caetano Piedade Fernandes and Another Vs. Union Territory of Goa, Daman and Diu Panaji, Goa, . Even the Patel''s case relied upon by the learned counsel for the respondent, viz., Ganesh Bhavan Patel and Another Vs. State of Maharashtra, accepts the view that powers of the High Court while hearing an appeal from an order of acquittal are as wide as powers of the Court while hearing an appeal against conviction and includes the power to re-assess evidence and reach its own conclusion. In spite of it, this Court would not disturb the acquittal if the conclusion of the trial Magistrate is a reasonable conclusion drawn on the evidence on record. In Shyam Behari vs. State of U.P., AIR 1976SC 400, the Supreme Court was of the view that if the view taken by the trial Court was such which no reasonable tribunal would have taken on the basis of evidence on record, the High Court would, not only be justified but would be under an obligation to reverse the acquittal by substituting its own evaluation of the evidence. In Jai Ram!? case (supra) the High Court had set aside the acquittal on a consideration of several important aspects of the case which were overlooked by the trial Court and the view of the High Court was approved. In Abdul Majid Abdul Rahman Vs. State of Gujarat, , the trial Court had rejected the evidence of eye-witnesses on flimsy grounds and the High Court had reversed the acquittal. The Supreme Court held that "prepossessed by suspicion, he smelled something sinister in the evidence of each and every prosecution witness and instead of logical ratiocination, he depended on speculation and conjectures." This view of the trial Judge was held not a reasonable view and, therefore, High Court''s reversing the acquittal was held to be fully justified. Similarly, in Baljit Singh and Another Vs. State of Uttar Pradesh, , the Supreme Court held that where the Sessions Judge by misreading the evidence, acquitted two of the accused in spite of clear evidence of some of the prosecution witnesses, the High Court was justified in correcting the error and reversing the acquittal. The decision reported in Ravinder Singh Vs. State of Haryana, , Soma Bhai Vs. State of Gujarat, , and Surat Singh and Another Vs. State of Punjab, , also follow the same reasoning and obliged this Court to re-appreciate the evidence with a view to ascertain if conclusions reached by the trial Magistrate are correct. Under the circumstances submission of the learned counsel for the respondent that this Court would not be justified in taking a different view of the evidence on record while hearing this appeal against acquittal, is too broadly stated and cannot be accepted.

P.W. 1 Shyambihari is a hawker selling books and magazines at Burhanpur motor stand. He is a witness to seizure-memo (Ex.P-2). In his statement in the Court, he deposed that he was informed by Balwantsingh Chauhan and constable Premchand that they were informed that opium was being illegally transported in the bus. He was present at the bus-stand when Indore-Akola bus reached the bus-stand at Burhanpur. According to him, the respondent got down from the bus and was apprehended by Shri Chauhan, who also took his search. According to him, the respondent was carrying an air-bag and another file type bag. On search, wearing apparels were found in the air bag, but from the other bag; opium was found. This witness claims to have smelt and tested the opium. A Panchanama, according to him, was prepared on the spot and signed by him. He proved his signature on the Panchanama Evidence of this witness has not been found reliable, because of his statement in paras 8, 9 and 10. In para 8, the witness admitted that he was carrying his book-thela at the relevant time and had kept the said thela at a distance of 4-5 feet from the bus. He admitted that he was standing near his thela, meaning thereby that he himself was at a distance of 4-5 feet from the bus. In para 9, he admitted that he did not count the passengers of the bus, nor could he say as to which passenger came out of the bus with what luggage. In para 10, he stated that the constable had apprehended the respondent and brought near his thela, that he recognised the respondent. These statements are said to have destroyed his entire testimony given in cross-examination. It is really ununderstandable. If we have to reconstruct the scene on the basis of this evidence, it would appear that the bus carrying passengers had stopped at a distance of about 4-5 feet from this witness and several passengers were coming out of the bus. This witness is a bookseller and was not interested in recognizing the passengers. His remaining at a distance of 4-5 feet should guarantee that the respondent was caught only when he was coming out of the bus. Indeed, it was not suggested to him in cross-examination that the respondent was not a passenger in the bus. Clearly, therefore, those paragraphs in his cross-examination do not either destroy his main testimony or prove that he was a false witness. It appears that the learned Magistrate was somehow out to disbelieve this witness. That is Why he observed that this witness was an ordinary person The fact that he sells books, is taken to be an act of favour done to him by the police officials. This approach of the learned Magistrate, to say the least, is prejudicial and perverse. If a poor wage-eamer is disbelieved only because he is an ordinary citizen, Courts will have to disbelieve majority of Indians on this count. This, however, is neither the law nor the judicial approach. Similarly, the fact that this witness is carrying on his business because of favour from the police, is nothing but a figment of imagination of the learned Magistrate, indicative of his biased mind. Selling books in the motor-stand is a job done openly and publicly. If our knowledge is any guide, such book-shops are licensed by the owner of the stand. Sale by unauthorised persons would certainly invite protest from licensed dealers. Under the circumstances, it must be held that the learned Magistrate has intentionally and unjustifiably rejected this witness''s evidence. A reading of the evidence of this witness leads this Court to believe that it is clear. honest and straightforward There is, therefore, no reason why his evidence should not be accepted. His evidence is also fully supported by the seizure-memo (Ex.P-1).

Premchand (P.W.2) is the constable who had apprehended the respondent in the bus itself and had opened his bag to find the opium in it Evidence of this witness has been brushed aside on the sole ground that he was a police-constable. There is ho law that evidence of a police constable is unworthy of acceptance however clear and cogent it may be. The learned Magistrate, by so holding, has only expressed his own ignorance of law. There is good deal of authority to hold that testimony of police officials has to be treated in the same manner as the testimony of any other witness. There is no presumption that police officials are liars. The presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds therefor. (Raja Khima vs. State of Saurashtru, AIR 1936 SC 217). To the same effect is the decision in Hazari Lal Vs. State (Delhi Administration), and Girdhari Lal Gupta and Another Vs. D.N. Mehta, Assistant Collector of Customs and Another, . Under the circumstances, it is not possible for this Court to reject the evidence of this witness on the only ground that he is a police-constable. This witness has been extensively cross-examined and stated that he had checked every passenger at the gate of the bus and the respondent was checked after six passengers had been checked. He also stated that the seizure-memo was prepared at a distance of about 10-15 paces from the bus. There is nothing in his cross-examination to hold that this respondent was not the person who was apprehended in the bus and from whose possession the opium was seized. P.W. 3 Rameshsingh is another independent witness to the seizure who had, unfortunately, not supported the prosecution and was, therefore, declared hostile. In spite of it, he admitted his signature in the Panchnama. A reading of his statement as a whole would indicate that he was trying to favour the respondent by denying that it was this respondent from whose possession the opium was seized. In spite of his hostility, he proved that the Panchnama was prepared and bears his signature and that the Panchnama related to seizure of opium from one of the passengers. P.W. 4 B.S. Chauhan is the Police Inspector and further proves the seizure of opium from the respondent. His evidence is clear and cogent. Evidence of B.S. Chauhan and Premchand receives full corroboration from P.W. 1 Shyambihari and the seizure memo (Ex.P-2). This evidence clearly and specifically proves that the opium was seized from possession of the respondent. Clearly, therefore, he was found transporting opium illegally and in contravention of Section 9-A of the Act.

The learned counsel for the respondent submitted that Ex.P-1, i.e., the report of the Chemical Examiner, is not admissible in spite of Section 293, Criminal Procedure Code, as it has not been proved that the person who has given the report, was really appointed as Assistant Chemical Examiner. Section 293, Criminal Procedure code permits the Court to use report of a Government scientific expert to whom this section applies, as evidence in the trial under this Code. The section applies to an Assistant Chemical Examiner to the Government. The report (Ex.P-1) was tendered in evidence and genuineness of the same was not disputed by the Advocate for the respondent. The genuineness, it was not disputed, would relate to the fact that it was the report of an Assistant Chemical Examiner. If the Assistant Chemical Examiner, who has apparently given this report, was not the Assistant Chemical Examiner, the respondent would have stated so while admitting its genuineness. The presumption attaches to every part of the report -- including the person giving the same. Under the circumstances, it is too. late to submit that the report was inadmissible. The report was rightly admitted and considered in evidence.

Objection of the learned counsel for the respondent based on Daulat Ram''s case (supra) is also without any basis. It was not a case where the sample changed hands before reaching the Public Analyst. No such questions were asked to B.S. Chauhan (P.W. 4) who claimed to have sent the sample for chemical examination. Similarly, no benefit can be obtained from the decision in Kaur Sam''s case (supra), as P.W. 1 Shyambihari is held to be an independent witness and not a police witness.

In view bf the discussion aforesaid, it must be held that the acquittal of the respondent is wholly illegal and unjustified. It is, accordingly, set aside. the respondent is found guilty of the offence punishable u/s 9-A of the Opium Act and convicted accordingly.

The next and important question is about the sentence to be imposed. The submission of the learned counsel for the respondent is that the respondent is a young person and the incident is about nine years'' old. Under the circumstances, it is submitted that a jail sentence was not called for. It is not possible to agree with the learned counsel. Transportation of opium in an illegal manner, is a social crime as its illegal sale concerns human health which is so relevant to our present society. Socially sensitised justice is the requirement of law and, therefore, such cases must be dealt with firmly. Considering the fact that a maximum sentence of three years is provided for this offence, a jail sentence of one year''s R.I. would be appropriate in the facts and circumstances of the case. the respondent is, therefore, sentenced to one year''s R.I.

The appeal succeeds and is allowed. Acquittal of the respondent is set aside. He is, on the contrary, convicted for offence u/s 9-A of the Opium Act and sentenced to one year''s R.I. Since he is on bail, let him appear before the Chief Judicial Magistrate, Khandwa, on 28-4-1986 to receive this judgment and undergo the sentence.