Chandrama Singh and Another vs State of Assam

S.N. Phukan, J.—On 1.2.1975 a police party headed by the Sub-Divisional Police Officer, Dhemaji accompanied by the Officer-in-charge of the Dhemaji P.S. along with other police personnel searched the shop-Cum-residence of (sic)ensed Chandrama Singh of Jiadhal Tingharia of Dhemaji. The search was conducted on the strength of a search ''warrant issued by the Sub-Divisional Magistrate, Dhemaji, on the basis of a secret information received by the police. It is alleged that daring the search 3 Kgs. of contraband opium and also 40 K. Gs. of ganja were recovered from the possession of accused Chandrama Singh and Jagadish Prasad Misra the contraband articles were seized, accused persons were arrested and sample of the seized opium was sent to the Chemical Analyst, Government of Assam, Forensic Science Laboratory, Gauhati. From the evidence on record, I find that at the time of conducting the search, the father of the accused Chandrama Singh was present in the house and ht died on the spot. Police submitted charge sheet u/s 5(a) of the Assam Opium Prohibition Act, 1947 and u/s 4 of Assam Ganja and Bhang Prohibition Act, 1958 and two separate cases were registered against both the accused persons being Case No. G.K. 52/1975 and G.R. No. 53/1975 respectively the learned trial Court disposed of both the cases by a common judgment and order dated 11.6.79 sections of both the Acts, convicted them accordingly and of Rs. l,000- u/s 5(a) of the Assam Opium Prohibition Act and also sentenced them each to undergo rigorous imprisonment for 6 months and fine of Rs. 500/- u/s 4 of the Assam Ganja and Bhang Prohibition Act. The conviction and sentences were affirmed by the learned Sessions Judge in Criminal Appeal No. 20(3) of 1979 by judgment and order dated 5.5.80. Hence, the present petition.

Mr. Bhattacharjee submits that the judgment and order of the learned lower appellate Court is liable to be set aside in respect of the accused Jagadish who at the relevant time was serving in the Artillary Department of the Armed Forces for on compliance of Rule 3 of the Criminal Court and Court Martial ( Adjustment of Jurisdiction. ) Rules, 1952, for short, ''the Rubs'' as the said rule is mandatory the learned public prosecutor, Assam submits that this point was not urged before the burned lower Appellate Court and that apart this being a quest on of jurisdiction cannot be urged at this stage.

To appreciate this point, it is relevant to consider Sections 125 and 126 of the Army Act, 1950 and also rules 3 and 4 of the aforesaid Rules framed there under the provisions off the said sections and rules are quoted below:

Choice between Criminal Court and Court-martial.- When a criminal Court and a Court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which Court tree proceedings shall be instituted, and if that officer decides that they should be instituted before a Court-martial to direct that the accused person stall be i detained in military custody.

Power of criminal Court to require delivery of offender.-

(1) When a criminal Court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of alleged offence, it may, by written notice, require the officer referred to in Section 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government.

(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the Court before which the proceedings are to be instituted for the determination of (he Central Government, whose order upon such reference shah be final.

Rule 3

Where a person subject to military, naval or Air Force law is brought before a Magistrate and charged with an offence for which he is liable to be tried by a Court-martial, such Magistrate shall not proceed to try such person or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any offence triable by such Court, unless-

(a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military, naval or Air Force authority, or

(b) be is moved thereto by such authority.

Relevant portion of Rule 4 is quoted below:

Before proceeding under, Clause (a) of Rule 3, the Magistrate shall give a written notice to the commanding officer of the accused and until the expiry of a period of-

(i) three week, in case of a notice given to a Commanding officer in command of a unit or detachment heated in any of the following areas of the hill districts of the State of Assam, that is to say-

(1) Mizo, (2) Naga Hills, (3) Garo Hills,

(4) Khasi and Jaintia Hills, and

(5) North Cochar Hills,

(ii) seven days, in the case of a notice given to any other Commanding officer in command of a unit or detachment located elsewhere in India,

* * *

(a) * * *

(b) * * *

(d) * * *

The rules were framed by the Central Government in r exercise of powers conferred by Sub-section (1) of Section 549 of the Code of Criminal Procedure, 1973, the rules of 1952 is still in force by virtue of Clause (b) of Sub-section 2 of Section 484 of Code of Criminal Procedure, 1973.

From the records, I find that the learned trial Court did not follow the procedure as contained in the aforesaid sections of the Army Act and Rules 3 and 4 of the Rules. Now the question is whether for such non-compliance, the entire trial is vitiated and the conviction is liable to be set aside.

In Delhi Special Police Establishment, New Delhi Vs. Lt. Col. S.K. Loraiya, charge u/s 120B, I.P.C. read with Section 5(1)(c) and (d) and Section 5(2) of the Prevention of Corruption Act and under I Sections 467 and 471 I.P.C. was framed by the learned Special Judge, Gauhati without following this procedure prescribed in Rule 3 of rules. Their Lordships considered the legality of the aforesaid charge and held that procedure prescribed in Rule 3 is mandatory and as the said procedure was not followed the charge cannot survive. In the instant proceeding no such plea was taken at the time of framing of the charge or at the time of trial. As stated earlier for the first time this question has been raised before this Court. In Som Datt Datta Vs. Union of India (UOI) and Others, an incident took place inside the unit of the Armed, force to which the Petitioner was attached. Though, the first information report was lodged with the local police, post mortem was done in the Civil Hospital and inquest was also done by the Civil Police, But ultimately the Petitioner, was tried by the Court Martial and his conviction was challenged before the Supreme Court it was held by their Lordships that Sections 125 and 126 of the Army Act provide a satisfactory machinery to resolve the conflict of jurisdiction having regard to the exigencies of the situation in a particular case. Their Lordships repelled the contention that as no notice was given by the Commanding officer to the Magistrate under Rule 5 of the Rules, the Petitioner ought to have been tried by the Criminal Court alone as the said Court had jurisdiction under Rule 3 to conduct the proceedings. Their Lordships further held that the rules apply to a case where the proceedings have already been instituted in an ordinary Criminal Court, having jurisdiction to try the matter and not at a stage where such proceeding has not been instituted.

In Joginder Singh Vs. State of Himachal Pradesh, it was held that it is clear that in respect of an offence which could be tried, both by criminal Court as well as a Court-martial, Section 125 and 126 of the Army Act, and the rules have made suitable provisions to avoid conflict of jurisdiction between the ordinary criminal Courts and Court-martial and that at the first instance discretion is left to the officer mentioned in Section 125 to decide before which Court the proceedings should be instituted. According to their Lordships the Officer commanding the Army, Army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed will have to exercise his discretion and decide u/s 125 in which Court the proceedings shall be instituted. It is only when he so exercises his discretion and decides that the proceedings should be instituted before a Court martial, that the provisions of Section 126(1) come into operation. According to their Lordships if the designated officer does not exercise his discretion and decide that the proceedings should be instituted before a Court-martial, the Army Act would not obviously be in the way of a Criminal Court exercising its ordinary jurisdiction in the manner provided by a law. In that case their Lordships found that the designated officer u/s 125 did not choose to exercise his discretion and decided before which Court the proceeding should be instituted and in particular he also did not decide that the proceedings should be instituted before a Court-martial. In view of the above position, their Lordships held that there is no occasion for the criminal Court to adopt the procedure laid down in Section 126 of the Army Act.

From the provisions of sections 125 and 126 and also Rules 3 and 4 and in view of the above law laid down by the Supreme Court, I find that the provisions of the above law shall come into play only for the purpose of deciding jurisdiction. These provisions have been made by legislature as both Court martial and the ordinary criminal Courts have jurisdiction to by the offence and to avoid conflict of jurisdiction, it is necessary to by down such procedure and accordingly it has been done. It is true that in the present proceeding the learned trial Court neither issued notice on the competent authority of the Army for recorded the reasons though Rule 3 is mandatory provision, but at the same time the competent military authority also did not raise any objection regarding trial of the accused Jagadish. As stated earlier both the Court-martial and ordinary criminal Courts have jurisdiction to try the accused. Merely because the procedure of the Army Act and the Rules were not followed the conviction will not be vitiated or illegal more particularly when the military authority did not exercise the discretion and decide in which Court the proceeding shall be instituted. I therefore, bold that the contention of Mr. Bhattacharjee has no force.

The second contention of Mr. Bhattacharjee is that the prosecution has miserably failed to prove conscious possession opium and ganja on the part of the accused person and as such the conviction is illegal.

In Abdul Ali v. the State AIR 1950 Gau 152 A person was charged with the possession of opium and it was held that it must be shown that the said person had knowledge of the existence of the opium before he can be said tobe in possession of in--mere recovery of opium from the house in which be lives along with others would not be sufficient to show bat be was in possession with the knowledge of its existence as it must be conscious possession making some kind of control possible, or, in other words, there must be mens ma or guilty knowledge before a person could be convicted of an offence u/s 5(a). It was also held that burden of proving conscious possession on the part of the accused remains on the prosecution and that burden is not shifted to the accused. In Dular Kumar v. the State AIR 1952 Gau 26 two brothers were living in the same house and a large quantity of opium was found hidden in a heap of bricks lying in the Courtyard of the house. There was no evidence pointed to the conclusion that both or any one of them bad guilty knowledge of the existence of, the opium. This Court held that the possession of opium must imply knowledge and it must be conscious possession making some kind of control possible or in other words there must be some menses or guilty knowledge before a person could be convicted of an offence for possession of opium. In Kamalli Begum v. State of Assam 1985 (1) GLR 32 , the question of possession of liquor under the provisions of the Assam Liquor Prohibition Act, 1952 was considered and it was held that possession must be distinguished from custody and it must, be conscious possession. In Ghuran Yadav Vs. State of Bihar, the allegation was that six bags of non duty paid ganja was found in the house said to belong to the Appellant. But there was no evidence to establish the ownership of the house with the Appellant. As there was no legal evidence to show that the house which was searched belonged to the Appellant, the conviction was set aside. In Chaganraju Vs. State of Andhra Pradesh, as there was no legal evidence to show that C was either in possession of gold articles recovered from the compound of his house or he had any knowledge of toe same, C is not liable to be convicted. In Patel Jethabhai Chatur Vs. State of Gujarat, it was held that it cannot be gainsaid that e ''en a person who participates in a dinking party can be (sic)ilty of possession of liquor. Their Lordships held that the question is not whether a participant in s drinking party can place himself for possession of liquor by stretching his hand and taking it, but whether he is actually in possession of it and possession must be distinguished from custody and it must be conscious possession.

In Abdul Ali v. State of Assam (Cr. A. No. 176 of 1963), 1955 SC Notes 389, the Supreme Court considered Section 5(a) of the Assam Opium Prohibition Act, 1947 with reference to ''conscious possession''. In that was the luggage box-containing opium was in the luggage boot of the taxi and the key was in possession of the driver. Their Lordships held that the above circumstances would pot prove that the driver was knowingly in possession of the contraband opium and accordingly allowed the appeal.

Situated thus, I hold that possession must be distinguished from custody and it must be conscious possession the prosecution to bring home the charges must prove that the accused persons had knowledge of the existence of the ganja and opium and it must be conscious possession making some kind of control i.e. there must be mens rea on the part of the accused persons Assuming that the house from which the ganja and opium were seized belonged to accused Chaudrama, let me examine whether the accused person bad knowledge and/or control over the said sized ganja and opium.

Regarding opium the prosecution story is that it was recovered from the compound of the accused Chandrama. There is nothing on evidence to show that members of the public had no access into the said compound the seizure list in question only shows that the opium was seized from the compound but it does not indicate where from it war seized, In the F.I.R. in question, it was mentioned that the opium was thrown by be accused Jagadish. P.W. 1, a police constable stated that he saw accused Jagadish running out of the house by the back door of the shop with a bundle in his band and throwing it away. He further stated that he picked up the bundle and handed ever to the Officer-in-Charge, P.W. 6 and this fact has not , been denied by P.W. 6. So from the prosecution evidence, it appears that though in the seizure list, it was mentioned that the opium was seized from the compound of the house of accused Chandrama, actually it was seized by the P.W. 6 on being, produced by P.W. 1 as stated earlier, According to P.W. 1, he saw accused Jagadish throwing away the opium. Even if I accept the evidence of P.W. 1 regarding throwing away of the opium by accused Jagadish, it cannot be held that accused Chandrama had any control over the possession of the opium and as such I pensions possession of the opium by abused Chandrama is totally absent. Regarding conscious possession of accused Jagadish, I find that in the F.I.R. filed in connection with G.R. Case No. 53/1975 i.e. relating to be offence under Assam Ganja and shang Prohibition Act, 1958, it was stated that the ganja was recovered under the bed where Jagadisb was sleeping. Both the occurrence took place at the same time and place. This statement in the F.I.R. goes against the evidence of P.W. 1 that he saw accused Jagadish throwing away the opium. It is also risky in criminal proceeding of this nature to convict accused Jagadish on the sole testimony of a police constable in view of the fact that according to the prosecution the house was surrendered by the villagers witnesses were present at the time of search. I, therefore, do not find any conscious possession of the opium in question by accused Jagadish. There is no dispute that the premises does not belong to accused Jagadish or that he resides there. From the evidence on records, I find that he is a casual visitor to the said house, this evidence also do not support the prosecution story regarding conscious possession. In Dular Kumar (Supra), the ratio laid down by the Court is that in absence of evidence pointing to the conclusion that both the brothers or one of item had guilty knowledge of the existence of opium, n conviction is maintainable. I am of the opinion, that in the instant proceeding also the conviction is bad and there is no evidence for arriving at the conclusion that both the accused persons or any or any one of them had any guilty knowledge of the existence of the opium in the premises in question.

Mr. Bhattacharjee has drawn my attention to the fact, the conviction is not legally maintainable as there is no evidence to show that the premises in question belonged to the accused Chandrama as alleged. In Ghuran Yadav, the conviction of the accused for alleged possession of six bags of non duty paid ganja was set aside on the ground that there was no legal evidence to show that the house belonged to the accused. In the instant proceeding, there is no clear finding of the learned Courts bellow that the house belonged to the accused Chandrama. There is no dispute that at the time of conducting the search the father of the accused was present in the premises and died during the period, Prosecution has not adduced any independent evidence to show that the premises in question belonged to accused Chandrama Police officials have only stated that according to their information the house belonged to the said accused which is no legal evidence at all. On the other hand, P.W. 2 who is a seizure witness, stated that t3oe shop premises i.e. the premises where the search was conducted belonged to the late father of accused Chandrama. This witness stated oat the accused person Chandrama resides it a distance of one and half furlong from his house. Though this witness was declared hostile by the prosecution, he was only cross-examined in respect of his alleged statement to the police that in his presence search was conducted. But the prosecution has not proved the same statement of this witness. Merely because, a witness has been declared hostile his evidence cannot be treated as completely washed off (see Sat Paul v. Delhi Administration (AIR 1975 SC 294). As his prior statement before the police has not been proved by the prosecution, his evidence before the Court has to be accepted. Moreover, there is no better evidence adduced by the prosecution to allow that the house belonged to the accused Chandrama the fact the father of accused Chandrama was present during the search and that he died while the search was carried on also goes against the prosecution story that the house belonged to accused Chandrama. As there is no legal evidence to show that the house where from the opium and the ganja were recovered belonged to accused Chandrama, the judgment suffered from illegality.

Incidentally, it may be mentioned that according to prosecution the sample of the seized opium was sent for chemical examination, but the report has not been proved or produced, and this fact goes against the prosecution.

As stated earlier, both opium and ganja were alleged to have been recovered when the premises were searched. Though it is alleged that the ganja was recovered under a bed, the accused persons can be held guilty for the fact that prosecution failed to prove that the house belonged to accused Chandrama and that either accused person bad any, guilty knowledge or control over the seized ganja and opium.

Mr. Bhattacharjee has also attacked the judgment on the ground that the statements of the accused person u/s 313 CPC were not recorded as required under law and support, the learned Counsel has placed before me a catena decisions namely Jai Dev and Ors. v. State of Punjab AIR 1953 SC 612 , Bakhshish Singh Dhaliwal Vs. The State of Punjab, S. Harnam Singh v. the State AIR SC 2140.

The law is veil settled-failure to record the statement of the accused by putting properly enabling him to explain in circumstances appearing any evidence against him is a serious irregularity, but such irregularity will vitiate the trial only if it is shown that it has caused prejudice to the accused. I have pursued the statements recorded by the learned trial Court and I do not find any irregularity or illegality causing prejudice to the accused persons.

For the reasons stated above, I bold that both the learned Courts below have erred in drawing Inference from the evidence on record regarding conscious possession of the accused persons regarding seized opium and ganja, This being a illegality is amenable to the revisional jurisdiction of this Court. The impugned judgment and order is liable to be set aside on this fascine alone.

In the result, the petition is allowed by setting aside the impugned judgment and order and rule is made absolute.