Saleem vs State of U.P.

Ashok Srivastava, J.—This criminal revision has been directed against the judgment and order passed by learned Ist Additional Sessions Judge, Rampur in Criminal Appeal No. 9 of 1987 ( Saleem v. State ) u/s 9 of the Opium Act, P.S. Ganj, District Rampur. Lower court records have been received and are tagged with the file of this revision.

The brief facts of the case are that the complainant of the case S.I. Raghunath Prasad was posted on 13.1.1982 at Police Station Katghar, District Moradabad. A case at Case Crime No. 867 of 1982 u/s 457, 380 and 411 I.P.C. was registered at his police station. The complainant gathered certain informations regarding the theft properties whereupon he went to Rampur and contacted the police of P.S. Ganj. It should be mentioned here that the complainant of the said case of theft was accompanying the said police officer. Two Sub Inspectors and some other police personnel of P.S. Ganj, Rampur accompanied the complainant and they went to a place where the suspected accused and stolen properties may be found. However, the main accused could not be apprehended but the revisionist Saleem was found at that place and at that time he was wearing a shirt said to have been stolen away in the abovementioned incident of theft. The said shirt was identified as such by the complainant of the theft case. The police party, with a hope to recover the theft articles from the residential house of the revisionist, went inside his house and the same was searched. No theft property was recovered from that place but a locked box was found. On inquiry, the revisionist allegedly told the complainant that the box belonged to him and he was having the key of the lock. On the instructions, the revisionist opened the box and on its search 1.25 Kg. of opium was recovered which was wrapped in a piece of cloth. The revisionist did not have any license to keep such opium in his possession and, therefore, according to the complainant, the said opium was illicit. An arrest and recovery memo was prepared at the spot. It should be mentioned here that before conducting the search of the house of the revisionist, two members from the locality were asked to participate in the search proceedings and they participated in the recovery process and viewed the same. An F.I.R. was lodged with the police of P.S. Ganj, Rampur. The matter was investigated and a chargesheet was filed in the court of learned Magistrate who took cognizance. The trial proceeded. Thereafter, the witnesses were examined and the trial before the Magistrate resulted in conviction of the revisionist. The learned Magistrate had passed the relevant judgment in Criminal Case No. 648 of 1983 ( State v. Saleem) on 12.1.1987. The revisionist was sentenced to two years'' R.I. and a fine of Rs. 1000/-was also imposed upon him. Feeling aggrieved by the said judgment and order of conviction, the revisionist filed an appeal before the learned Sessions Judge, Rampur which was registered as Criminal Appeal No. 9 of 1987. The said appeal was decided on 23.4.1987 by the learned Ist Addl. Sessions Judge. The appeal was dismissed and the conviction and sentence were confirmed. Feeling aggrieved by the said judgment and order passed in the appeal, the present revision has been preferred.

I have heard learned Counsel for the parties and perused the lower court records.

Two important law points have been argued before me from the side of the revisionist. They are (i) no search warrant was obtained by the police before conducting the raid at the residential house of the revisionist as regards the recovery of the theft properties despite the fact that the I.O. of that case had ample opportunity to obtain such search warrant. Thus, the provisions of Sections 100 and 165 of Code of Criminal Procedure have been violated and (ii) nothing is there on record which may indicate that the opium said to have been recovered from the possession of the revisionist was ever sent for its chemical examination and on this point the findings of both the lower courts are perverse.

In the instant case the theft of certain articles was committed in the district of Moradabad. The I.O. of the theft case, who is complainant of the present case had visited the P.S. Ganj, Rampur after getting an information that the stolen articles might be recovered from the residential house of the revisionist. Therefore, the I.O. had ample opportunity to have a search warrant in the matter. On this point the said Sub-Inspector has been examined as P.W. 1 and during his cross-examination he has said that due to urgency he could not obtain a search warrant. He has further said in his cross examination that he has mentioned this fact of urgency and the same was recorded in the relevant G.D. At this stage cross examination of this witness was stopped by the court and the prosecution was asked to produced the relevant G.D. When this witness appeared on the next date for his further cross examination, he had come without the G.D. On being cross examined he said that the G.D. has been lost in a case of fire which had erupted in the police record room but no certificate or details of the said incident of fire has been given by this witness. It is really astonishing as no proof or evidence was available with the prosecution to prove that a fire took place in the police record room in which various documents and records were burnt. This indicates that this witness is lying on this point and on this point his evidence cannot be believed. Therefore, in the instant case the violation of Section 165 Code of Criminal Procedure has been committed. It has been argued at this juncture from the side of the State that the instant case is related not with the theft case but with a case of recovery of opium. This contention appears to have force but when we pierce the veil it is evident that the recovery of opium was an accidental recovery and the circumstances and incidents prior to this accidental recovery made by the complainant go to show the conduct of the police party including the complainant and a question crops-up as whether really some search was made at the residence of the revisionist or not. This circumstance is material and has not been looked into by the courts below and not looking into this important circumstance amounts to perversity. Therefore, this circumstance goes in favour of the revisionist.

Now I come to the 2nd point argued before me. In this case five prosecution witnesses have been examined. P.W. 1 is S.I.

R.P. Singh who is complainant of this case, P.W. 2 is S.I. Om Prakash, who was accompanying the complainant when the raid was conducted. P.W. 3, Laddan, is a public witness and so is P.W. 4 Shadiq Ali. P.W. 5 is I.O. of the case. It should be mentioned here that P.W. 3 and P.W. 4 have turned hostile and they have not supported the prosecution version. From the perusal of cross examinations of these two hostile witnesses done by the learned A.P.O. it does not appear that these two witnesses are lying and I find that the prosecution had failed to elicit any fact which may indicate that these two witnesses were won over by the accused. There is no law which may say that a hostile witnesses is telling a lie or he has been won over by the accused. The law is otherwise and it says that a statement on oath made before the court shall normally be taken to be true unless it appears from the entire statement of the hostile witnesses that they are not speaking the truth. In such set of circumstances it was obligatory on the part of the learned trial court and appellate court to examine the statement of P. Ws. 1, 2 and 5 with extra caution but no such effort has been made.

From perusal of the recovery memo which is Ext. Ka. 1 it is evident that no sample of the recovered opium was separated from the main lot. There is nothing on record which may indicate that said opium was ever produced before any Magistrate under the instructions of S.O. or I.O. of the case with the request that the sample be separated from the main lot and sent to the public analyst for its chemical examination. Ext. Ka. 5 is the Public Analyst Report but there is nothing to show that the sample was ever taken before a Magistrate and was sent by him for its chemical examination to the Public Analyst. The learned Magistrate has committed a grave error when he has made certain presumptions in respect of Ext. Ka. 5. It is established that no such law is there which permits such a presumption. It was the duty of the prosecution, at the trial stage, to prove that the entire opium was produced before the Magistrate with an application having in it the prayer to the effect that a sample be separated before the Magistrate from the main lot and be sent to the Public Analyst for its chemical examination with a letter from the Magistrate to the said analyst to examine the sample and furnish the report. The police constable should have been also produced to depose that there was no opportunity to any unauthorised person to handle or even to touch the opium from the point of time when it was taken out from the Malkhana to the point of time when it was handed over to the custody of the public analyst. But in the instant case no such evidence has been led. The prosecution has totally failed to prove that Ext. Ka. 5 is related to or connected with the sample of the recovered opium. No such application or letter is available on record. No constable has been produced who may state that he had produced the entire opium before the court and a sample was separated from the main lot and sealed separately under the instructions of the court, taken by him to the Public Analyst with the letter of the court and handed the same over at the office of the Public Analyst without any undue delay. It is really astonishing that such an important lacuna has been dealt with in a cursory manner by both the courts below. In fact in the instant case the prosecution has miserably failed to establish that the alleged opium was really opium. Ext. Ka. 5 has wrongly been exhibited and it appears that it was obtained to create an evidence. A conviction on such illegal and improper document cannot be allowed to sustain.

On the basis of the above discussion, I am of the view that the revision has got force and it should be allowed. The revision is allowed.

The judgment and orders passed by both the courts below are quashed and set aside. The revisionist stands acquitted. If he has deposited any fine with the lower court, the same shall be refunded to him without delay. The bail bonds of the revisionist are cancelled and sureties are hereby discharged.