The State of Haryana vs Ram Niwas

R.N. Mittal, J.—This appeal of the state of Haryana is directed against the judgment of acquittal rendered by the judicial Magistrate 1st Class, Sirsa dated February 5, 1974.

Briefly the prosecution story is that on the night intervening June, 9/10, 1972, S.I. Braham Dutt (P W. 2) alongwith constables Pyare Lal and Rattan Singh was present in village Bara Gudha in the course of patrol duty. He received information that Ram Niwas accused and Jugal Kishore were present with opium at the tubewell of Mohan Lal Arora in the area of village Buddhabhana. A raiding party was formed by him with two constables who were already with him and by joining Dayal Singh (PW. 1) and Gurbachan Singh (PW. 3) Thereafter, the party reached the tubewell of Mohan Lal Arora where they found Ram Niwas accused and Jugal Kishore sitting on two char pais near the tubewell. Both of them, it is alleged, on seeing the police party, started running with one bundle each in their hand. They were, however, secured by the police and opium weighing about 2 kilograms was found in the bundle carried by Ram Niwas. A sample weighing 10 gms was taken from the opium and the remaining opium was put in a tin. The sample and the tin were made into two parcels and sealed.

S.I. Braham Dutt sent a ruqa to the police station, Bara Gudha on the has is of which a formal first information report (Exhibit PB/1) was recorded. Ram Niwas accused was challaned u/s 9 (1) of the Opium Act, 1878. The accused denied all the facts and pleaded that he had been implicated falsely. The case was tried by the Judicial Magistrate, 1st Class who acquitted him. The State has come up in appeal against the judgment of the Judicial Magistrate 1st Class to this Court.

The first contention of the learned counsel for the State is that the respondent was carrying a bundle of opium weighing about 2 kilograms and the learned Magistrate gave him the benefit on the ground that before conducting a search, the S.I. did not offer himself for search to him. He has argued that in case the volume of the article which is to be recovered is such that it cannot be concealed and there is no such voluminous article with the police officer, then it is not necessary for him to offer himself for search to the person to be searched he has further argued that in the present case the respondent was carrying opium weighing about two kilograms in a bundle and a bundle of that size could not be concealed by the Police Officer. Consequently, it was not necessary for S.I. Braham Dutt to offer himself for search to the respondent.

We have heard the learned counsel and rind force in the contention of the counsel for the State. The counsel for the parties have not been able to bring to our notice any provision in the Code of Criminal Procedure which requires that a police officer before recovering any incriminating article from the accused, should offer himself for search to the accused. The principle of offering for search by the police officer at such juncture is a rule of caution. The basic principle in doing so is to avoid the possibility of planting incriminating material by the police officer on the person of the accused when search is made. In case the article which is alleged to have been recovered is of such a nature that, it can be concealed by the police officer on his person, it is necessary that he should offer himself for search to the accused. But if the volume of the article which is to be recovered is such that it cannot be concealed by him on his person, then in our opinion, it is not necessary for him to offer himself for search to the accused. To illustrate, if some money in the form of currency notes is alleged to have been recovered from the accused. It may be necessary for the police officer to offer himself for search to the accused before searching him but it may not be necessary in case a pitcher of incriminating article weighing about 20 kilograms is recovered from him.

In the present case, the prosecution version is that the accused was carrying the opium in a bundle having two kilograms of it and that it could not be concealed by the police officer on his person. In the circumstances, no adverse inference can be drawn against the prosecution if the S.I. Braham Dutt did not offer himself for search, before recovering the incriminating material from the accused. The learned trial Court while holding to the contrary placed reliance on Tikkam Dass K. Dossani v. State 1973 Ch. L.R. 2999 That case was u/s 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act and the prosecution story was that the accused had accepted a currency note of Rs. 100/ as illegal gratification which was recovered from him. That case is distinguishable from the present case and the ratio in that case will not be applicable to it.

The second contention of the learned counsel for the State is that a sample of opium was sent to the Chemical Examiner, Karnal for analysis and a report was received from him that it contained 1.2% morphine. Another sample at the instance of the accused was sent to the Assistant Chemical Examiner, Chandigarh and he gave an opinion that it contained 3.14% morphine. Mr. Gill submits that the learned Magistrate wrongly gave benefit of the conflicting reports of the Chemical Examiners to the accused. According to the learned counsel both the samples fall within the definition of opium as given in the Act. The opium, he urges, is a costly commodity and is adulterated by smugglers. He further urges that adulteration is not made by a mechanical process and it is possible that in a large adulterated quantity of opium, the percentage of morpine may not be uniform. In the circumstances, Mr. Gill argues, if different percentage of morphine is found in different samples taken at different times, from the same packet, an adverse inference cannot be drawn against the prosecution.

We have given a thoughtful consideration to the argument and also find force in it. The word ''opium'' has been defined in Section 3 of the Act which read as under:--

"Optum"

(i) the capsules of the poppy (Papaver somniferun L) whetherin their original form or cut, crushed, or powdered and whether or not juice has been extracted therefrom.

(ii) the spontaneously coagulated juice of such capsules which has not been submitted to any manipulations other than those necessary for packing and transport; and

(iii) any mixture, with or without neutral materials, of any of the above forms of opium,

but does not include any preparation containing not more than 0.2 per cent of morphine, or manufactured drug as defined in Section 2 of the Dangerous Drugs Act, 1930 (2 of 1930)

From clauses (ii) and (iii) of the definition it is evident that the mixture of spontaneously coagulated juice of capsules of the poppy with or without neutral material, if it contains more than 0. 2% of morphine, is opium. It may be possible that if coagulated juice of poppy is found in large quantity without mixture of any neutral material, it may have uniform quantity of morphine. If, however, a neutral material is mixed with it with manual process, it is possible that the admixture may not contain a uniform quantity or morphine in it. The inevitable result would be that if samples are taken at different times from the admixture, the percentage of morphine detected in them after analysis, may not be the same. In the circumstances, it cannot be held that the sample was not taken from the same material, if evidence, in case of recovery in large quantity, is otherwise credible, the accused should not be given any benefit on the ground that percentage of morphine exceeding 0.5% was found in different samples taken at different times. A contrary view has been taken by a learned Single Judge of this Court in Satnam Singh v. The State (1967) 69 P.L.R. 645, wherein it was held that where the reports of the Chemical Examiners are conflicting, the benefit of divergence must go to the accused as the case is not free from doubt. With great respect to the learned Judge, we are unable to affirm the above view.

The third contention of Mr. Gill is that the evidence of the prosecution was reliable and trustworthy but the learned Magistrate erroneously rejected it on frivolous grounds. He further submits that the offence against the respondent was fully established but inspite of that he had been given the benefit of doubt and acquitted. Findings of the Magistrate, according to the counsel, are perverse and deserve to be set aside. We are unable to accept this contention of the learned counsel. Dayal Singh (P.W. 1) admitted that he appeared in 5-7 cases as Police witness and joined the police party as and when the police summoned him. He had been called by the police during the night from his house, which was in the heart of the village. He was neither a member of the Panchayat nor Lambardar. It is also admitted by the prosecution that Gurbachan Singh the other witness was called by Dayal Singh P.W. 1. These facts show that Dayal Singh was a convenient witness for the police. He also assisted it in providing another witness. Moreover the statement of this witness differs from that of the Sub-Inspector on material points. He stated in his cross-examination that both the accused ran in the opposite direction to each other. The Sub-Inspector on the other hand deposed that both of them ran in the same direction and not in the opposite direction. If the respondent had been arrested in the way as described by the prosecution there should not have been any contradiction on this point. In appeal against acquittal, the High Court is slow in disturbing the finding of fact arrived at by the trial Magistrate. In this regard reference may be made to the observations of the Supreme Court in Sita Ram Durga Prasad Vs. The State of Madhya Pradesh, , wherein it was held, that in appeals against acquittal, the High Court should give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he had been acquitted at his trial; (3) the trial of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. We have gone through the statements of the witnesses and are of the view that they are not trust worthy. In our opinion, the trial Magistrate properly appreciated the evidence and rejected the prosecution version.

In view of the aforesaid circumstances, it will not be proper to upset the findings of the trial Magistrate. The appeal, therefore, fails and the same is dismissed.

Bhopinder Singh Dhillon, J.

I agree.