The State vs Babu Singh

Falshaw, C.J.—Babu Singh Respondent was tried by a Magistrate on a charge u/s 9 of the Opium Act, but was acquitted and this appeal has been filed by the State against the order of acquittal.

The prosecution story is that on the morning of the 5th of October 1961 S. I. Dalip Singh and A. S. I. Ram Rakha Singh went to the village Bhalwan accompanied by Kirpal Singh P. W. 1 of Dhuri. In the village information was received that Babu Singh was in possession of some opium, and after sending a report to the Police Station the Sub Inspector and others joined by Gurbux Singh and Harnam Singh, Lambardar of the village, went in search of Babu Singh whom they met on the roadside coming from his field. The person of Babu Singh was searched and from one of his pockets a small tin containing 5 tolas of opium wrapped in a paper was recovered. A sample of the opium was cut off and put in a separate sealed parcel to be sent to the Chemical Examiner, who has reported that the substance was opium.

The accused denied his guilt and denied that anything was recovered from him saying that the case was false. He examined one witness in defence Ishar Singh, another Lambardar of the village, who said that he was present when Babu Singh was searched and that nothing was recovered from him.

The learned Magistrate in acquitting the accused has not discussed the evidence at all and has based the acquittal on what appears to be curious reasoning. He has said that the search was governed by the provisions of S. 103 Criminal Procedure Code, Sub-section (2) of which provides that a list is to be prepared of any articles sized in the course of a search The recovery memo in this case is Ex. P. B. and it is drafted and signed by S.I. Dalip Singh and also by the A. S. I. and the three witnesses to whom I have referred above. All that it relates is that in the presence of the witnesses mentioned below the person of Babu Singh was searched and a tin containing 5 tolas of opium recovered part of which had been placed in a separate parcel. The learned Magistrate was of the opinion that this recovery memo was inadmissible in evidence because it was signed by the witnesses and thus contravened the provisions of section l62 Code of Criminal Procedure which forbids the police to obtain the signature of any person on his statement recorded in an investigation presumably u/s 161. He further went on to say that since the list was required by Section 103(2) to be in writing, oral evidence regarding its contents was barred by Section 91 of the Evidence Act.

This view of the matter of the learned Magistrate appears to me to be wholly mistaken. Section 103(2) itself requires that the list shall be signed by the persons witnessing the search and by no stretch of imagination can the facts regarding the recovery recorded by the Sub Inspector be regarded as statements made by the witnesses and recorded by the Sub Inspector u/s 161 Criminal Procedure Code. It is thus clear that the recovery memo Ex. P. B. is not inadmis- sible in evidence, but even if it were so on some technical ground Section 91 of the Evidence Act has no applicability whatever.

Indeed the learned Counsel for the Respondent did not attempt to uphold the ground on which the Respondent was acquitted, and the order of acquittal must be set aside. Ordinarily the course to be adapted in these circumstances would be to send the case back to the trial Court for a decision on the tacts after considering the evidence, but the learned Counsel for the Respondent, perhaps thinking that this course would involve a conviction by the trial Court followed by an appeal in the Sessions Court and then a revision petition in this Court, made the request that we should consider the evidence and decide whether the guilt of the Respondent was established or not.

In my opinion there is no reason whatever for not believing the evidence of the witnesses produced by the prosecution in this case. Their evidence was undoubtedly contradicted by the evidence of Ishar Singh D. W 1, but it is curious to find in this connection that none of the prosecution witnesses was even asked whether Ishar Singh was present at the time of the search, and I do not attach any weight to his evidence. The only criticism of the prosecution witnesses appears to be that Gurbux Singh and Lambardar Harnam Singh admitted having appeared as witnesses in one or two other cases and this is certainly expected at least in the case of Lambardar.

In the circumstances I am of the opinion that the possession of 5 tolas of opium by Babu Singh has been established beyond reasonable doubt. He would accordingly accept the appeal of the State and convict Babu Singh u/s 9 of the Opium Act and sentence him to pay a fine of Rs. 100/- or in default to under go two months'' rigorous imprisonment. He must surrender to his bail bond which will be cancelled if the fine is paid.otherwise he must be sent to jail to serve the sentence in default.

Jindra Lal, J.

I agree.