1. These are two appeals by the State of Himachal Pradesh under Section 417, Cr. P. C., against the orders of acquittal passed by Sri Devkinandan Magistrate first class, Nahan, in cases 26/3 and 27/3 of 1953 under Section 19(f), Arms Act, and Section 9, Opium Act, 1878, respectively. The appeals arise under the following circumstances:
2. On 31-3-1953, the Ambala police, with the assistance of Nahan police, searched a house situated in Mohalla Rani Tal, Nahan Bazaar, said to be the property of Booti Nath, respondent. It was alleged that a 303 rifle along with 49 live cartidges were recovered from that house, in addition to hill opium, weighing 8 seers 13 chhataks, vide recovery memo. Ex. P. A. On the basis of these recoveries, two cases were started against the respondent, one under Section 19(f), Arms Act, and the other under Section 9, Opium Act, 1878. The cases were tried by Sri Devkinandan, Magistrate first class, Nahan. Although the two offences were tried separately, nevertheless, the witnesses in the two cases were common and both of them were disposed of on the same day i.e., 22-6-1954, by two almost identicaljudgments. The learned Magistrate came to the conclusion that the offences were not brought home to the respondent and accordingly acquitted him. Feeling aggrieved by the orders of acquittal, the State Government has filed these appeals under Section 417, Cr. P. C. Arguments in the two appeals were heard on the 17th instant. As I shall show presently, the trials were unsatisfactory in many ways and retrials are in my opinion, necessary in the interest of justice.
3. As already stated, the gist of the prosecution case against the respondent was that his house was searched by the Ambala and Nohan police on 31-3-1953 and as a result of that search an unlicensed rifle with 49 live cartridges as well as 8 seers and 13 chhataks of hill opium were recovered therefrom. The respondent denied the recoveries. Consequently, two main points for determination arose: (1) Whether the house, which was searched by the police, belonged to or was in the possession and control of, the respondent? (2) If so, were the articles in question namely the rifle and cartridges in case No. 26/3 and hill opium, weighing 8 seers and 13 chhataks in case No. 27/3, recovered therefrom?
4. I find that as far as the first point is concerned, the learned trial Magistrate has not considered this aspect of the case at all. Although thepolice and excise officers, who conducted the search,i. e,. Sarup Singh, Inspector of Police, Ambala,Chandan Singh, A. S. I Ambala, Bikram PrakashSingh S. I. Excise Intelligence Bureau, Punjab, &Negi; Mohan Singh, S. I. Excise Nahan, had deposedthat the house searched belonged to the respondent,no specific question in this regard was put by thelearned Magistrate to the respondent, in spite of thefact that his statement was recorded on four differentoccasions, i. e. 7-1-1954, 14-1-1954, 15-1-1954 and29-4-1954. I may point out that on 7-1-1954 whenrespondent was examined after the learned Magistrate had recorded the statements of the prosecution,witnesses, the following compound question was putto him:-
In case No. 26/3 of .1953.
Q. 'Kya banduq Ex. P. 1. 303 may kartus ek bandlier se tumahre kabza se baramad hui--aur tumahre makan se?' The answer was: 'Ji Nahin.'
In case No. 27/3 of 1953.
Q. 'Kya 31-3-1953 ko tumahre makan ki talashi per 8 seer 13 chhatak pahari afim jo ek thali zin khaki se 13 chhatak afim--aur ek thali markin safed se 8 seer afim pahari baramad hui?'. The answer was: 'Ji nahin.'
5. In view of the prosecution case that the house belonged to the respondent and his two wives. Mts. Bindi and Reli, were living in it, as well as his servant, Devi Ram, and his guest Dip Ram it was incumbent upon the learned Magistrate to examine the respondent on all these matters and give him an opportunity of admitting or denying these allegations. While discussing the case against the other accused, the learned Magistrate has remarked: 'Under the law, only an adult male member of the house is responsible for such possession.' Apparently, the Court below accepted the prosecution case that the house in question was in the .occupation of the respondent and his family but, unfortunately, he has not given a clear finding on this point, nor--as was incumbent upon him did he examine the respondent on these weighty points. The learned counsel for the appellant argued before me that the examination of the accused under Section 342, Cr. P. G., as made by the Courts below, was neither fair nor proper, since material questions had been left out, e.g., whether the house in question was in the occupation of the respondent, whether the two women in occupation of the premises, at the timeof the recovery, were his wives or not. Learned counsel for the respondent also conceded that the accused-respondent was not properly examined and the mandatory provisions of Section 342 Cr. P. C have not been complied with. This is all the more regrettable because I find that the Court below examined the respondent--as pointed out above--on four different occasions but all the same omitted to put material questions, going to the root of the case. It goes without saying that unless the house in question is shown to have been in the occupation and control of the respondent, the mere factum of recovery of the incriminating articles therefrom could not fasten criminal liability on him.
6. Coming to the other point for determination, namely, as to whether the incriminating articles, in question, were recovered, as alleged by the prosecution, the Court below appears to have been considerably influenced, in its judgment, by the fact that the two search witnesses, Jadu Ram and Tara Chand, who either signed or thumb-marked the recovery list, Ex. P-A, somehow did not support the prosecution case at the trial.
According to their statements, the opium and the unlicensed arms were not recovered in their presence. They were lying outside in the varandah, when they arrived at the scene. The learned Magistrate then observes :
'Nothing has been brought on the record to disbelieve or place no credence on the statement of these two witnesses. Booti Nath, it is admitted on all hands was absent at the time of search. Things would have been different if the search was made in his presence. In view of the absence of Booti Nath at the time of search, coupled with the statements of Jadu Nath and Tara Chand witnesses, the entire prosecution case shrouds in mystery and doubt and I would go to the extent of remarking that the prosecution has alarmingly failed to bring home a clear cut case even against Booti Nath accused.'
The learned counsel for the appellant argued--and, in my opinion not without justification--that the mere fact that Tara Chand and Jadu Ram failed to support the prosecution case would not, necessarily, warrant the inference that the other witnesses to the recovery were unreliable. Under Section 134, Evidence Act, 'no particular number of witnesses shall, in any case, be required for the proof of any fact'.
Further, the law, nowhere, says that the testimony of a police or excise officer should, necessarily, be discarded, unless' it is corroborated by that of a non-official. In this connection, my attention was invited by the learned counsel for the appellant to--'State v. Badruddin', 1950 All 436 (AIR V 37) (A).
There, the facts were that the house of one Badruddin was searched by a Deputy Superintendent of Police in the presence of the Station Officer, Excise Inspector, and a few other persons. The latter, however, were not examined as witnesses. Raghubar Dayal, J., under the circumstances, held that:
'It is contended that non-official witnesses of the search, though summoned, were not examined and that the defence witnesses were not preferred to the prosecution witnesses about the search. The accused could have examined those search witnesses, who appeared in Court, and were not examined by the prosecution.
The only inference that can be drawn against the prosecution on account of the omission of those witnesses is that they would have deposed against the prosecution. It will still be a matter for the Court to believe any set of witnesses. When the Courts below believed the prosecution witnesses, they committed no illegality or irregularity.'
Similarly, in--'Emperor v. Kisan Narayan', 1951;Bom 186 (AIR V 38) (B), a Division Bench of theBombay High Court expressed itself in the following terms:
'It would be open to the Court to convict the accused on the evidence of police officers alone, if after examining that evidence carefully, the Court feels satisfied that it is true.'
7. The grounds on which the learned trial Magistrate discarded the testimony of official search witnesses are as follows:--(a) According to Mool Raj, Sub-Inspector, only the first floor of the house in question was searched and the incriminating articles were recovered therefrom. According to the other search witnesses, however, all the storeys were searched.
(b) According to Dyal Chand, Head Constable, he alone accompanied the Ambala police and Mool Raj, S. I., came later. According to the last mentioned, however, he accompanied the Ambala police from the police station.
(c) Kirpal Singh, H. C., who conducted the search, was not searched by any of the accused persons.
(d) Tara Chand Jadu Ram stated that a constable came to their houses and took them to the house of the respondent, whereas, according to other witnesses, these two witnesses, namely, Tara Chand and Jadu Ram, were picked up on the way. The trial Magistrate has not given reasons for holding that these discrepancies--if they can be deemed to be such--were so serious as to discredit the police and excise officers, in question, in toto.
8. The learned Government Advocate pointed out that the learned trial Magistrate was labouring under a misapprehension that these cases were investigated by the Ambala police. The Magistrate remarks:
'The fact that the case should have been investigated by the Nahan police, whereas it was done by the Ambala police, is not understandable.'
The Court Below appears to have overlooked the statement of S. I. Mool Raj to the effect that after the search had been made and recoveries effected, cases under Section 19(f), Arms Act, and Section 9, Opium Act, were registered in Nahan police-station and investigation started.
The two challans were also submitted by the Nahan police & are signed by Amar Singh, A. S. I. I do not understand how the learned Magistrate got the impression that the cases had been investigated by Ambala police.
9. The learned Government Advocate drew my attention to the view of the trial Magistrate that the search was illegal, as it took place before sun-rise, contrary to the provisions of Section 14, Opium Act. In--'State v. Nilam Das', 1952 Him-P 74 (AIR V 39) (C) (cited by learned counsel for the appellant), my learned predecessor had occasion to remark that:
'It was held in--'Crown v. Nabu', 11 Pun Re. Cri. 1909 (D), that it is no defence to a charge under the Opium Act that the discovery of the incriminating opium was made as a result of an illegal search. The illegality in that case was that in contravention of Section 14 the search was made at midnight.
It was held in--'Emperor v. Allahadad Khan 35 All 358 (E), that irrespective of the search being legal or illegal, the thing to see is whether the finding as to the commission of the offence was correct, That was a case under the U. P. Excise Act, .1910, but the principle is equally applicable in the present case 1950 All 436 (AIR V 37) (A) was a case both under the Excise Act and the Opium Act.
So far as the latter Act was concerned, the irregularities were that a Deputy Superintendent of Police had conducted a search without a warrant at 7. P. M. in contravention of the provisions of Section 14, and that no local witness was summoned to witness the search as required by Section 103 of the Code. It was held, that these facts alone would not vitiate the conviction once it was proved that illicit opium had been found in possession of the accused'
10. I have referred to these matters in some detail in an attempt to show that the approach made by the trial Magistrate to the case was not in accordance with law. There is a wealth of case law on the points, which arose for determination, but, curiously enough, not a single authority has been cited, let alone discussed, by the trial Magistrate.
Learned counsel for the respondent stated that he had cited about ten authorities at the trial, but not one of them has been referred to by the learned Magistrate. As already pointed out, the examination of the accused was defective in that material questions were not put to him. I have considered the question whether it would be possible to remedy this state of affairs by examining the respondent myself.
Both the learned counsel at the bar submitted that in case further questions are now put to the respondent, e.g., with reference to his ownership or occupation of the premises in question, it may become necessary for him to adduce defence. They pointed out that no defence was adduced in the trial Court and suggested that this might have been due to the fact that the respondent was not questioned on this aspect of the case.
All circumstances considered, the best course, in my opinion, is to send the cases back with a direction that the trials be resumed from the stage the proceedings had reached, when the respondent was examined on 7-1-1954.
Material questions, which had been omitted by the trial Magistrate should be put to the respondent, his answers thereto recorded and the trials should proceed further in accordance with law. Since Sri Devkinandan has expressed his opinion on the merits of the case, they should now go to some other Magistrate of competent jurisdiction.
11. The result is that, without expressing myopinion on the merits of the cases, I allow theseappeals to this extent, that the orders of acquittalpassed by the trial Magistrate in the two cases,numbers 26/3 and 27/3 of 1953, are set aside andthe cases are sent back to the learned DistrictMagistrate, Nahan, with the direction that, eitherhe, or a Magistrate of competent jurisdiction, subordinate to him (other than Sri Devkinandan),should resume the trials from the stage the proceedings had reached, when the respondent was examined on 7-1-1954.
Material questions, which were omitted by the trial Magistrate (as shown above) should be put to the respondent and his answers thereto recorded. Further, he should be called upon to state whether he wishes to adduce defence or not. If he wishes to adduce defence, he should be given an opportunity to do so.
The cases should then be disposed of in accordance with law and judicial authorities on thesubject. This direction would, of course, be subject to the provisions of Section 350, Cr. P. C. I shouldnot be undertsood as having expressed my opinionon the merits of the cases, one way or the other.This order will be read in both the appeals.