Gujarat High Court
Abdulla Gafur Sumra vs State Of Gujarat on 24 December, 1992
Equivalent citations: 1994CRILJ966
JUDGMENT A.N. Divecha, J.
1. The original accused in Sessions Case No. 70 of 1988 has invoked the appellate jurisdiction of this Court for questioning the correctness of the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge of Kutch at Bhuj on 30th November, 1991. Thereby, the appellant has been convicted of the offence punishable under Section 3(1)(c) of the Official Secrets Act, 1923 ('the OS Act' for brief).
2. The prosecution case may be summarised thus : One Police Sub-Inspector, named, Gurkha, was working in the Khavda Police Station from 31st January 1986. He came to know that the present appellant was wanted with respect to some offences connected with the Passports Act, 1967. The PSI also received some information that the present appellant was connected with certain anti-national activities. It appears that the present appellant could be found around 14th March 1986. A case against him was instituted under the Passports Act. It appears that he was released on ball on a condition that he should report to the police station at Khavda at the prescribed regular intervals. It appears that the PSI received some secret information that some offending materials for the purposes of the O. S. Act was kept in one hut ('bhunga' in the local parlance). The information further revealed that it belonged to one Rahimna Daud. This piece of information was received by the PSI some time on 8th May 1986 presumably during late hours. He immediately rushed to his superior officer for the purpose of obtaining an order for searching that hut as provided in Section 11(2) of the O. S. Act. The necessary written request in that regard from the PSI to his superior officer is at Exh. 144 on the. record of the case. It appears that the addressee of the written request at Exh. 144 on the record of the case was camping at Nakhatrana. It appears that the PSI contacted him in the early hours of 9th May 1986. Looking to the urgency involved in the matter, the concerned superior officer passed the necessary order under Section 11(2) of the O. S. Act. It is at Exh. 87 on the record of the case. The PSI appears to have rushed back to Khavda and reached home at 6.15 a.m. on that very day. He appears to have gone to the police station at Khavda around 9 a.m. on that day with a view to implementing the order at Exh. 87 on the record of the case. As aforesaid, the present appellant was required to report to the police station at Khavda at the prescribed intervals. One such day fixed for his reporting to the police station at Khavda was 9th May, 1986. He appears to have reported thereto around 9 a.m. on that day. It appears that on some preliminary interrogation he showed his willingness to point out the offending material lying in the but allegedly belonging to Rahimna Daud. Thereupon two panch witnesses were summoned. The order at Exh. 87 on the record of the case was read out to the present appellant as well as to the two panch witnesses. It appears that the present appellant showed his willingness in presence of the panch witnesses to point out the offending material lying in the hut in question. A preliminary panchnama to that effect was drawn in the police station between 9.30 a.m. and 10.00 a.m. on that day. Thereafter the PSI in the company of certain other police officials and in the company of present appellant as well as the two panch witnesses set out for the hut in question in a police jeep. It was situated in village Sumrapole. The jeep carrying the party went to the place after about an hour's journey. They entered the hut in question. The present appellant pointed out from some shelf in the hut one bag containing one undeveloped film roll, one map, one-half portion of a Pakistani currency of Re. 1, 2 empty and open cigarette packets of foreign make bearing some Urdu-like writing and some 4 sheets of paper containing certain names and addresses. All these articles were seized in presence of the panch witnesses after obtaining their signatures on the portion of the Pakistani currency note, the empty open cigarette packets each sheet of paper and the slips attached to the packet in which the undeveloped film roll was placed and sealed. The necessary panchanama to that effect was drawn in continuation of the preliminary panchanama with respect to the search and seizure made in the hut in question. It appears to have consumed nearly 1 hour from 11.30 a.m. The panchnama was duly signed by both the panch witnesses and the PSI (that is, Gurkha). The party came back to the police station at Khavda. The PSI also brought with him the seized articles. He made the necessary report to the District Superintendent of Police at Bhuj with respect to the manner in which the order at Exh. 87 on the record of the case was executed. The report made by the PSI to the DSP is at Exh. 145 on the record of the case. It appears that the DSP thereafter, by his order passed on 19th May, 1986, directed one Dwivedi to investigate into the matter. That order is at Exh. 34 on the record of the case. Pursuant thereto the investigating officer filed the necessary First Information Report ('FIR' for convenience) on 20th May, 1986. It is at Exh. 130 on the record of the case. The investigating officer understood the investigation work. After recording the statements of certain witnesses, the Urdu-like writing found on the empty cigarette packets was got translated. It turned out to be the writing in Sindhi. The undeveloped film roll was also got developed and the prints thereof were obtained. On completion of the investigation, the papers were submitted to the concerned authority for launching prosecution against the present appellant. It appears that in the meantime the present appellant was apprehended on 4th August 1986. He was released on bail some time in January 1987. It transpires from the record that the alleged owner of the hut in question was not traceable in India. Thereupon the complaint with respect to the incident in question was required to be filed only against the present appellant before the Chief Judicial Magistrate of Kutch at Bhuj. That complaint is at Exh. 114 on the record of the case. It appears to have been registered as Criminal Case No. 27 of 1988. The learned Chief Judicial Magistrate committed the case to the Sessions Court for trial. It came to be registered as Sessions Case No. 70 of 1988 in the Sessions Court of Kutch at Bhuj. It appears that in the meantime the owner of the hut in question, named, Rahimna Daud was also traced out. He was also apprehended. Thereafter the necessary complaint against him was filed on 29th March, 1990 before the Chief Judicial Magistrate of Kutch at Bhuj. It came to be registered as Criminal Case No. 18 of 1990. The learned Chief Judicial Magistrate of Kutch at Bhuj committed that case also to the Sessions Court for trial. It came to be registered as Sessions Case No. 38 of 1990 in the Sessions Court of Kutch at Bhuj. The complaint against said Rahimna Daud is at Exh. 1 on the record of the Sessions Case. It appears that both Sessions Cases Nos. 70 of 1988 and 38 of 1990 were ordered to be heard together. It appears that both the cases were assigned to the learned Additional Sessions Judge for trial and disposal. The charge against both the accused was framed on 14th November, 1990. Both of them pleaded not guilty to the charge. They were thereupon tried. After recording the prosecution evidence the further statement of each accused was taken under Section 313 of the Criminal Procedure Code, 1973 ('the Cr. P.C.' for brief). The defence of the present appellant was that he was falsely implicated at the instance of one Musa Bhunger on account of enmity between the parties and with the police. The defence of the other accused was to the affect that the hut in question did not belong to him. Both of them filed their additional written statements under Section 313 of the Cr. P.C. They are at Exhs. 147 and 149 on the record of the case. After hearing arguments, by his common judgment and order passed on 30th November, 1991 in Sessions Cases Nos. 70 of 1988 and 38 of 1990, the learned Additional Sessions Judge of Kutch at Bhuj acquitted the accused of Sessions Case No. 38 of 1990 but convicted the accused of Sessions Case No. 70 of 1988 of the offence with which he was charged and sentenced him to rigorous imprisonment for 7 years and ordered to give set-off for the period he remained in jail. The aggrieved convict has thereupon preferred this appeal before this Court and has questioned the correctness of the judgment and order of conviction and sentence passed by the learned trial Judge.
3. Shri Barejia for the appellant has taken us through the entire evidence on record in support of his submission that the prosecution has failed to prove its case against the present appellant beyond any reasonable doubt. According to Shri Barejia for the appellant, the present appellant has been able to probabilise his version to the effect that he was falsely implicated by PSI Gurkha on account of enmity between the two at the instance of one Musa Bhunger against whom the present appellant was required to give deposition. Shri Barejia has further urged that there is no evidence on record to connect the present appellant with the offending material. In that view of the matter, runs the submission of Shri Barejia for the appellant, the impugned judgment and order of conviction deserves to be set aside by this Court in this appeal. As against this, Shri Shelat for the respondent-State has urged that the overwhelming evidence on record clearly points the finger of guilt towards the present appellant. Shri Shelat for the respondent State has further submitted that the present appellant has been rightly convicted and sentenced by the learned trial Judge as the case against the present appellant has been proved beyond any reasonable doubt. Shri Shelat has further urged that the learned trial Judge has rightly disbelieved the defence version propounded by the present appellant to the effect that he was falsely implicated by PSI Gurkha out of vengeance and vindictiveness at the instance of said Musa Bhunger.
4. It is clear that the offending material produced before the Court by and on behalf of the prosecution would be offending material found in the prohibited place for the purposes of Section 3(1)(c) of the O.S. Act. The learned trial Judge has given elaborate reasoning why he has come to that conclusion. The one-half portion of the currency note was undoubtedly issued by the Government of Pakistan. The empty open cigarette packets were found to be of foreign make. The sheets of papers were found to be containing addresses of certain military officers and officials with their military codes. The prints obtained after getting the undeveloped film roll developed clearly showed that they were photographs of certain important and strategic places in India. It has clearly been established on record that, if those photographs and names and addresses of those military officers and officials with their military codes were passed on to the foreign country, national interests would stand jeopardised. Shri Barejia for the appellant could not seriously dispute this conclusion reached by the learned trial Judge. He has however seriously disputed the connection of the present appellant with the said offending material.
5. The panchnama at Exh. 91 on the record of the case clearly shows that the discovery of the offending material was at the instance of the present appellant. It is true that both the panch witnesses at Exhs. 90 and 107 on the record of the case were declared hostile by the prosecution. The panch witness at Exh. 107 did not at all support the prosecution case at trial except admitting his signature on the panchnama and other relevant articles forming the offending material. He also admitted his signature on the slip pasted on the sealed packet containing the undeveloped film roll. The other panch witness at Exh. 90 has supported the prosecution to a very limited extent. He has admitted his presence at the relevant time in the police station at Khavda as a panch witness in the company of the other panch witness at Exh. 107. The witness at Exh. 90 has also admitted his signatures on the panchnama in its entirety. He has also admitted the presence of the present appellant in the police station at the relevant time. He has also deposed to the effect that the preliminary panchnama was drawn at the police station at Khavda. He has unequivocally stated that the whole party went to some village in a police jeep. He has however not supported the prosecution with respect to the search and seizure carried out in the hut in question at the instance of the present appellant. He was therefore required to be declared hostile. The contents of the panchnama at Exh. 91 was proved by PSI Gurkha in his oral testimony at Exh. 133 on the record of the case. He was subjected to searching and severe cross-examination on behalf of the defence but he remained firm on the ground all throughout.
6. It is difficult to agree with Shri Barejia in his submission to the effect that the oral testimony of PSI Gurkha at Exh. 133 would require corroboration for bringing the guilt home to the present appellant in view of the fact that PSI Gurkha was a police witness. It is a settled principle of law that the reliable and trustworthy oral testimony of a police witness can be the basis of conviction. Simply because a witness happens to be a member of the police force is no ground by itself to doubt the veracity of his testimony. No cogent and convincing ground is found on record to render the oral testimony of PSI Gurkha at Exh. 133 to be unreliable and untrust worthy. He has given a detailed account of how and in what manner he obtained the order at Exh. 87 on the record of the case, how and in what manner he got the preliminary panchnama executed in the police station at Khavda and how and in what manner the search and seizure operation was carried out in Sumra-pole and resulting in completion of the panchnama at Exh. 91 on the record of the case. We have found his deposition to be quite credible and acceptable. His deposition has inspired confidence in us as to its reliability and trustworthiness."
7. At this stage we may mention that PSI Gurkha has been corroborated by the witness at Exh. 108. The corroborating witness is undoubtedly a member of the police force. He was working as a writer-constable attached to the police station at Khavda at the relevant time. The fact that he was a member of the police force and attached to the police station at Khavda in his capacity as a writer-constable is by itself no ground to declare him to be unreliable and untrustworthy. He has remained firm on his ground in his searching and severe cross-examination on behalf of the defence. Nothing material could be elicited from his cross-examination so as to doubt the veracity of his testimony or that of PSI Gurkha at Exh. 133 on the record of the case.
8. It is true that the witness at Exh. 108 has not given any detailed account of the search and seizure proceedings and has rested contended by saying that the contents of the panchnama at Exh. 91 were true. It may be mentioned that the panchnama at Exh. 91 on the record of the case was admitted to record before the witness at Exh. 108 was examined. The panchnama was not taken on record at the instance of this witness. In that view of the matter, no detailed account as to the search and seizure proceedings was required to be given by him. If the panchnama was required to be got proved by or through him, perhaps it could have been argued that he was required to give what transpired at that time and how the whole episode took place. We do not think that any undue importance should be attached to the fact that the witness at Exh. 108 has not given any detailed account of the search and seizure proceedings carried out at the hut in question in Sumrapole. He has clearly and unequivocally deposed to the effect that he was a member of the party visiting Sumrapole for carrying out the search and seizure proceedings and he had in fact gone to Sumrapole as stated by him in his cross-examination. He could not be dislodged from his stand in that regard in his cross-examination on behalf of the defence.
9. There is substance in the grievance voiced by Shri Barejia for the appellant to the effect that the panchnama at Exh. 91 could not have been admitted to record at the instance of the witness at Exh. 90 when he did not depose to the correctness of its contents. The witness at Exh. 90 has merely identified his signature on the panchnama but did not depose to the correctness of the contents thereof. The contents of the panchnama at Exh. 91 have however come to be proved by PSI Gurkha in his oral testimony at Exh. 133. In that, view of the matter, the panchnama at Exh. 91 can be said to have rightly been admitted to record and relied on for the purpose of fastening the criminal liability to the present appellant herein.
10. Much was sought to be made by Shri Barejia for the defence on the basis of some minor discrepancy found in the oral testimony of PSI Gurkha at Exh. 133 with respect to the other material on record. PSI Gurkha at Exh. 133 has stated that the present appellant showed his willingness to point out the offending material in the hut in question. It transpires from the oral testimony at Exh. 133 that this was done before summoning the panch witnesses. Shri. Barejia has submitted that nowhere in his oral testimony at Exh. 133 PSI Gurkha has stated that he ascertained the willingness of the present appellant again with respect to pointing out the offending material from the hut in question. Similarly, Shri Barejia has invited our attention to the contents of the panchnama at Exh. 9.1 to the effect that the willingness of the present appellant to lead to the offending material was shown in presence of the panch witnesses and not prior thereto. In that view of the matter, runs the submission of Shri Barejia for the appellant, there is no material on record to show that the panch witnesses were summoned as the present appellant showed his willingness to lead to discovery of the offending material. According to Shri Barejia, this would clearly show that PSI Gurkha wanted falsely to implicate the present appellant with respect to the offending material. We are unable to accept these submissions for the simple reason that minor discrepancies in the oral testimonies of witnesses cannot and need not be overemphasised in view of the ruling of the Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, reported in AIR 1983 SC 753 : (1983 Cri IJ 1096). At the same time, we cannot overlook the fact that the incident occurred some time in May 1986 and the oral evidence more particularly of the witness at Exh. 133 was recorded about more than 5 years thereafter on 28th October, 1991. It is difficult to expect a witness to retain in memory vividly what transpired on a day about 51/2 years back.
11. Another point pressed into service by Shri. Barejia for the appellant is the so-called delay on the part of PSI Gurkha in implementation of the order at Exh. 87 on the record of the case. It has been pointed out. to us that PSI Gurkha at Exh. 133 was back home at 6.15 a.m. on 9th May, 1986 with the order at Exh. 87 and he did not proceed to implement it till 9 a.m. when the present appellant reported to the police station at Khavda. in terms of the order passed by the Court, while releasing him on bail. According to Shri Barejia for the appellant, this delay was deliberate and with a view to connecting the present appellant falsely with the offending material for which the order at Exh. 87 on the record of the case was obtained. We are unable to accept this submission for the simple reason that we cannot overlook human conduct. PSI Gurkha at Exh. 133 has clearly stated that he was back home by 6.15 a.m. on 9th May 1986 after obtaining the order at Exh. 87 on the record of the case. He has clearly stated that he had been to Nakhatrana for the purpose as his superior officer was camping thereat. PSI Gurkha at Exh. 133 has also stated that Nakhatrana was about 130 Kms. away from Khavda, That distance was travelled by him in a jeep. According to him, it took a little more than 11/2 hours to cover that distance on one way. He is stated to have remained with his superior officer for the purpose of obtaining the order at Exh. 87 on the record of the case for about 30 minutes. It would mean that he might have travelled from Khavda to Nakhatrana and back for nearly 31/2 hours and half an hour was spent in obtaining the order at Exh 87. It thus becomes clear that ho remained away from Khavda for nearly 4 hrs, before coming back. If he came back at 6.15 a.m. on. that day, he might have left. Khavda around 2.15 a.m. on that day. on return from Nakhatrana after obtaining the order at Exh. 87 on the record of the case, he would naturally go home and try to be fresh for the day's work after keeping away practically for the whole night or at least during the real sleeping hours. Going home and becoming fresh for the day's work would be but natural for him. In that view of the matter, a little more than two hours delay in implementing the order at Exh. 87 on the record of the case will pale into insignificance. Such delay cannot be and need not be over emphasised. Even if the matter was extremely urgent, it is possible that no independent panch witnesses might have been available in the early morning. In that view of the matter also, some delay in implementation of the order at Exh. 87 on the record of the case was'bound to occur. This delay cannot be capitalised for the purpose of doubting the bona fide of PSI Gurkha. It might have been just a coincidence that the present appellant was to report to the police station at Khavda on that very day.
12. Shri Barejia for the appellant has then urged that the discovery and the recovery of the offending material cannot be taken note of in view of the fact that there was no discovery thereof at the instance of the present appellant as the placement of the offending material in the hut in question was known to PSI Gurkha at Exh. 133 before-hand. In other words, according to Shri Barejia for the appellant, nothing can be said to have been discovered if it. is already to the knowledge of the discoverer.
13. It is true that PSI Gurkha at Exh. 133 has admitted that he had information about placement of the offending material in the hut in question. The written request at Exh. 144 for the purpose clearly shows that the fact of concealment of the offending material in the hut in question was known to PSI Gurkha at Exh. 133. The order at Exh. 87 on the record of the case is also quite eloquent in that regard. We are with Shri Barejia up to the point that concealment of the offending material in the hut in question was known to PSI Gurkha at Exh. 133 before-hand. However, where exactly the offending material was concealed in the hut in question was certainly not within his knowledge. It is true that it would not have been difficult for the raiding party to find out the offending material from the hut in question. This process of finding out would quite certainly be the process of discovery. This process of discovery might have consumed some more time. The prince of the present appellant has eased the task of PSI Gurkha at Exh. 133 to that extent. In that view of the matter, there is no hesitation in coming to the conclusion that the discovery of the offending material from the hut in question was certainly at the instance of the present appellant. We are therefore of the opinion that the process of discovery is quite legal and valid and cannot and need not be ignored. If the discovery part of the panch-nama at Exh. 91 on the record of the case is found quite legal and perfectly just the recovery of the offending material from the hut in question under the panchnama at Exh. 91 on the record of the case has to be upheld as legal and valid.
14. The ruling of the Supreme Court in the case of Bahadul v. State of Orissa, reported in AIR 1979 SC 1262 : (1979 Cri LJ 1075), is distinguishable on its own facts. In that case the concerned accused did not make any voluntary statement pointing towards discovery of the offending article. It was found that he simply took it out from beneath his cot. In absence of any statement by the concerned accused under Section 27 of the Evidence Act, 1872 ('the I.E. Act' for brief), the Supreme Court refused to rely on the factum of recovery of the offending article in that case. This ruling of the Supreme Court in the case of Bahadul (supra) is not applicable to the facts of the present case. As pointed out hereinabove, it has come to be established on record that the present appellant made a statement before PSI Gurkha at Exh. 133 and also before the panch witnesses as transpiring from the panchnama at Exh. 91 on the record of the case showing his willingness to lead to the place where the offending material was concealed in the hut in question. The aforesaid ruling of the Supreme Court in the case of Bahadul (supra) is thus of no avail to the present appellant.
15. On the same reasoning are distinguishable the ruling of the Madhya Pradesh High Court in the case of Khalaksingh v. State of M. P., reported in 1992 Cri LJ 1150 and of the Delhi High Court in the case of Vinod Kumar Vaidh v. State reported in 1992 Cr LJ at page 3674. We do not propose to burden this judgment by elaborately discussing the facts involved therein.
16. Shri Barejia for the appellant has then made a grievance that the panch witnesses selected in this case were not residents of the locality in which the hut in question was situated and as such the action of selection of such panch witnesses was in contravention of Section 100(4) of the Cr. P.C. According to Shri Barejia for the appellant, the contravention of Section 100(4) of the Cr. P.C. would be fatal the prosecution case. In support of his submission he has relied on the ruling of the Madhya Pradesh High Court in the case of State of Madhya Pradesh v. Ramprakash, reported in 1989 Cri LJ 1585. It must be frankly admitted that the aforesaid ruling of the Madhya Pradesh High Court in the case of Ramprakash (supra) is somewhat helpful to the appellant in the present case. The relevant observations are found in para 11 at pages 1589-1590 of the reported ruling. We think it fit to quote para 11 in extenso (at pp. 1589-90 of Cri LJ):
Seizures evidenced by Exs. P/41-A, 42/ A and 43/A, according to us, must be regarded doubtful for the singular reason that the seizures were not made in accordance with the salutary provisions of Section 100(4), Cr. P.C. There is a clear breach in the case of each of the seizures of the statutory safeguard which requires "two or more independent and respectable inhabitants of the locality" to be called to witness the seizure made under the Code. The prosecution has not come forward with any explanation as to why the provisions of Section 100(4) could not be complied with. We have already noted that P.W. 13 was a chance-witness, an outsider and a foreigner to each of the three places of seizure, who had been called to the Police Station, Dirnni, by the I.O. It is in his evidence as also in the evidence of the I.O. in the Police Vehicle and he became instrumental in the exercise carried out by the I.O. evidenced in Exhs. P/40, P/41, P/41-A, P/42, P/42-A, P/43 and P/43-A. One of us (Dr. T. N. Singh, J.) had an occasion to consider the effect of breach of the provisions of Section 100, Cr. P.C. in the case of State of Assam v. Gopi Kishan Taperia, (1985) 1 Gauhati LR 193 when, speaking for the Division Bench, he had observed that when the provisions of Section 100(4) were breached, burden lay on the prosecution to explain reasons for non-compliance thereof. This view was taken after taking into consideration the holdings of the Apex Court in Radha Kishan's case, AIR 1963 SC 822: 1963 (1) Cri LJ 809, Bai Radha's case, AIR 1970 SC 1396, 1970 Cri LJ 1279, Subbayya's case, (1979) 2 SCC 115 : 1979 Cri LJ 651 : (AIR 1979 SC 711) and State of Maharashtra v. Natwarlal, AIR 1980 SC 593 : 1980 Cri LJ 429. It was held that necessity of saddling the prosecution with the burden to justify the breach of the salutary provision of Section 100(4), Cr. P.C. flowed from the Constitutional requirement of "reasonable procedure" inscribed in Article 21 of the Constitution which enjoined a positive duty on the Court to carefully and judicially screen the evidence of search and seizure in the light of the relevant legal provisions in a case where on the evidence of articles seized, the accused was liable to be convicted for any offence. On our own, we would like to add further that rigour of the requirement contemplated under Sub-section (4) casts a duty on the "Officer" to make search in the manner provided therein, under Sub-section (8), any person who refuses when he is called to witness a search is made liable to conviction under Section 187,1.P.C. Therefore, the duty of the "Officer" making the search to call "two or more independent and respectable inhabitants of the locality" has to be deemed in-exorable ane failure to perform the duty must be deemed to vitiate the search made in violation thereof unless explanation is furnished by the Officer concerned to justify the violation.
(Emphasis supplied) On the basis of the various rulings of the Supreme Court the Division Bench of the Madhya Pradesh High Court has tried to cull out the principle of law that the breach of the salutary provisions of Section 100(4) of the Cr. P.C. have resulted in contravention of the fundamental right guaranteed under Article 21 of the Constitution of India. With respect, we are constrained to observe that the ratio culled out from the rulings of the Supreme Court referred to therein does not appear to be what is stated by the Division Bench of the Madhya Pradesh High Court in its aforesaid ruling in the case of Ramprakash, (1989 Cri LJ 1585) (supra).
17. In its ruling in the case of Radha Kishan v. State of Uttar Pradesh, reported in AIR 1963 SC 822 : (1963 (1) Cri LJ 809), the Supreme Court has stated the principles thus (para 5):
It may be that where the provisions of Sections. 103 and 165, Criminal P.C. are contravened the search can be resisted by the person whose premises are sought to be searched. It may also be that, because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues, and the seizure of the articles is not vitiated.
18. In its ruling in the case of State of Maharashtra v. Natwarlal Damodardas Soni, reported In AIR 1980 SC 593 : (1980 Cri LJ 429), the Apex Court has stated the principle regarding search and seizure in the following words (para 10):
The police had powers under Criminal P.C. to search and seize the gold if they had reason to believe that a cognizable offence had been committed in respect thereof Assiming arguendo, that the search was illegal, then also, it will not also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the validity, of the trial which followed on the complaint of the Assistant Collector of Customs.
(Emphasis supplied)
19. In its ruling in the case o f 'Bai Radha v. State of Gujarat, reported in AIR 1970 SC 1396: (1970 Cri LJ 1279), the highest Court in the country was required to examine the provisions regarding search under Section J 5 of the Suppression of Immoral Traffic in Women and Girls Act, 1956. It appears that the non-compliance therewith was pressed, into service before the Apex Court. In that context, it has been held (para 5):
In that sense it would be legitimate to say that a search which is to be conducted under the Act must comply with the provisions contained in Section 15; but it cannot, be held that if a search is not carried out strictly in accordance with the provisions of that section the trial is rendered illegal. There is hardly any parallel between an officer conducting a search who has no authority under the law and a search having been made which does not strictly conform to the provisions of Section 15 of the Act. The principles which have been settled with regard to the effect of an irregular search made in exercise of the powers under Section 165 of the Code of Criminal Procedure would be fully applicable even to a case under the Act where the search has not been made in strict compliance with its provisions. It is significant that there is no provision in the Act according to which any search carried out in contravention of Section 15 would render the trial illegal. In the absence of such a provision we must apply the law which has been laid down with regard to searches made under the provisions of the Criminal Procedure Code.
20. It may be mentioned that the aforesaid three rulings of the Supreme Court were relied on by the Madhya Pradesh High Court in its ruling in the case of Ramprakash (1989 Cri LJ 1585) (supra) for the purpose of laying down, the principle of law that the search and seizure in contravention of Section 100(4) of the Cr. P. C. would vitiate the trial. With respect, we are unable to persuade ourselves to accept the ratio culled out by the Division Bench of the Madhya Pradesh High Court in its ruling in the case of Ramprakash (supra) from the aforesaid rulings of the Supreme Court. In fact, we are inclined to believe that the aforesaid three rulings of the Supreme Court were not properly appreciated by the Division Beach of the Madhya Pradesh High Court in its aforesaid rulings in the case of Ramprakash (supra).
21. In this case there was justification in not selecting the panch witnesses from the locality of the place where the search was to be carried out. It has come on record that the search party went in a police jeep and it took nearly 1 hour in reaching the hut in question at Sumrapole. If the panch witnesses were to be summoned from Sumrapole or some locality therein, it would have consumed quite some time, at least more than 2 hours, in bringing them to the police station at Khavda for the purpose of recording the preliminary panchnama after ascertaining the willingness of the present appellant to lead the search party to the hut in question in presence of these panch witnesses. The present appellant might have objected to or protested against such detention in the police station at Khavda for such a long time. The witness at Exh. 108 has stated that he summoned panch witnesses from the bazar in Khavda. It took him 10 minutes to bring them to the police station thereat. In this view of the matter, there was justification in not selecting the panch witnesses from the locality where the search was to be carried out.
22. Shri Barejia has then invited our attention to some confessional statement found recorded in the panchnarna at Exh. 91 on the record of the case and has urged that such confessional statement admitted to record along with the contents of the panch-namaat Exh. 91 would be hit by Section 25 of the I.E. Act. It is true that some sort of confession on the part of the present appellant is found in the panchnama at Exh. 91 on the record of the case. We have thought it fit to expunge by bracketting that confessional statement in view of the aforesaid statutory provision. Even if that confessional statement is omitted from the record, the panchnama at Exh. 91 on the record of the case conveys the necessary meaning leading to discovery of all the offending material. The whole panchnama does not become inadmissible in evidence only on account of admitting that confessional statement therein on record. Once the meaning of the panchnama sans the confessional statement is clear and unequivocal, the discovery and the consequential recovery of the offending material found recorded therein cannot be doubted.
23. Shri Barejia for the appellant has then urged that the witness at Exh: 122 was not cited as a witness in the charge-sheet and he could not have been examined at trial by and on behalf of the prosecution in support of its case. In fact, the submission urged before us by Shri Barejia for the appellant was to the effect that, if a witness is not cited in the first information report or the complaint or the charge-sheet, he cannot be examined as a witness on behalf of the prosecution at trial. This submission has to be stated only to be rejected for the simple reason that acceptance of such submission would render nugatory Section 311 of the C.r. P. C. It cannot be gainsaid that the enabling provision contained therein is not for gracing the statute book or as an empty or idle formality. The Court cannot be oblivious to the fact that it has not only to see that no innocent person is convicted and sentenced but it has also to see that no guilty person escapes the clutches of the penal law. It may be mentioned at this stage that the witness at Exh. 122 was examined at trial after obtaining leave from the Court on 31st December, 1990 by means of the application at Exh. 43. This application was obviously under Section 311 of the Cr. P. C.
24. Shri Barejia for the appellant has then made a grievance that the police statements of the witnesses at Exhs. 86 and 122 were not supplied to the appellant as the accused before commencement of the trial. According to Shri Barejia for the appellant, non-supply of the police statements of the concerned witnesses would mean that their police statements were not recorded, and as such they could not have been cited or examined as witnesses by and on behalf of the prosecution at trial. Non-recording of statements by the police under Section 161 of the Cr. P. C. would not preclude the prosecution from examining certain persons as witnesses at the trial in order to bring the guilt home to the accused. For example, the photographer might have been summoned to take photographs of the scene of offence. It would not be necessary for the police to record the statement of such photographer under Section 161 of the Cr. P.C. If the prosecution wants to bring the photographs on record, the examination of the photographer as a witness would become necessary if the photographs are objected to be taken on record on behalf of the defence without examining the photographer. In that case, the photographer would be examined as a witness though his police statement might not have been recorded under Section 161 of the Cr. P. C. There would be no bar against his examination as a witness for the prosecution at trial.
25. Both the witnesses at Exhs. 86 and 122 have admitted that their police statements were not recorded. The question of non-supply of their police statements would become irrelevant. In this case non-recording of the police statements of the witnesses at Exhs. 86 and 122 is justifiable. The witness at Exh. 86 was responsible for the passing of the order at Exh. 87 on the record of the case. No useful purpose would have served in recording his statement with respect to the fact of his issuing the said order. Similarly, the witness at Exh. 122 translated the writing on the empty open cigarette packets of foreign make. The translation has been proved by him. Recording of his statement would also be a mere formality. We do not think that non-recording of the police statements of these two witnesses can or will have any bearing on the prosecution version.
26. The witness at Exh. 86 was cited as a witness for the prosecution in the complaint at Exh. 114 at serial No. 32. His examination as a witness for the prosecution at trial could not have been objected. As pointed out hereinabove, the witness at Exh. 122 was examined by and on behalf of the prosecution at trial after obtaining the necessary leave from the Court on 31st December, 1990 by means of the application at Exh. 43 on the record of the case. We may also mention at this stage that no such objection against examination of these two witnesses at Exhibits 86 and 122 at trial was raised by and on behalf of the defence before the trial Court.
27. Shri Barejia has then invited our attention to the fact that the offence was detected on 8th May, 1986 as transpiring from the oral testimony of PSI Gurkha at Exh. 133 and the present appellant was arrested on 4th August, 1986 as transpiring from the oral testimony of the witness at Exh. 24. Shri Barejia for the appellant has submitted that the alleged offence was of a very grave nature and there ought not to have been any delay in apprehending the accused. Shri Barejia has submitted that it was not the prosecution case that the present appellant could not be traced and that was the reason why there was delay in his arrest. We do not find any force or substance in this submission for the simple reason that it has been established on record that the present appellant was required, to attend the police station at Khavda at regular intervals as a condition of his release on bail granted by the competent court. Besides, the offending material was already seized. There was no possibility of its transmission to any foreign agent or any foreign country. The commission of any anti-national activity in that regard was practically prevented. The attempt was nipped in the bud. In that view of the matter, there was nothing wrong if there was some delay in arresting the accused after being satisfied about his involvement therein. Even otherwise, we are of the opinion that delay in arrest of an accused by itself would not raise any reasonable or serious doubt about his involvement in the criminality in question.
28. Shri Barejia for the appellant has then tried to capitalise on some delay in lodging the F.I.R. by the police against the present appellant. According to Shri Barejia for the appellant, the involvement of the present appellant in the criminality in question was detected on 9th May, 1986 and the FIR at Exh. 130 on the record of the case was admittedly lodged on 20th May, 1986. Shri Barejia for the appellant has further submitted that this delay in lodging the FIR has not come to be explained. Relying on this circumstance on record, Shri Barejia for the appellant has submitted that this unexplained delay is capable of raising a serious and reasonable doubt about involvement of the present appellant in the criminality with which he was charged. It is true that the prosecution has not explained the delay in lodging the FIR in its technical sense. The decision to lodge the FIR against the present appellant was taken by the concerned police officer at Exh. 86 on 19th May, 1986 as transpiring from his order at Exh. 34 on the record of the case. The witness at Exh. 86 has in his cross-examination referred to communal riots prevalent in the area at the relevant time. Relying on this piece of evidence on record, Shri Shelat for the respondent-State has submitted that the delay in lodging the FIR has come to be explained by and on behalf of the prosecution though not in its technical sense. We are in agreement with the submission urged before us by Shri Shelat for the respondent-State. The witness at Exh. 86 has clearly stated in his cross-examination that the area in question was affected by communal riots at the relevant time. It would be quite natural for a police officer of the rank and status of the witness at Exh. 86 to be busy in quenching communal riots in preference to booking the present appellant when the offending material was already seized and its transmission to a foreign agent or to a foreign country was practically prevented. Even otherwise, unexplained delay in lodging the FIR by itself is not fatal to the prosecution case. It may prove fatal only if it is shown or suggested that the intervening period was used to concoct the case against the accused or to fabricate some evidence against him. The panchnama at Exh. 91 on the record of the case clearly shows that the offending material was properly sealed and there was no possibility of any tampering with it. No other material except what was seized on the panchnama at Exh. 91 on the record of the case has been used against the present appellant at trial. In that view of the matter, the possibility of any connection of the case against the present appellant or any fabrication of evidence to be used against him has to be ruled out.
29. Shri Barejia has then urged that PSI Gurkha at Exh. 133 was a responsible police officer attached to the police station at Khavda and it was his duty under Section 154 of the Cr. P. C. to have registered the case against the present appellant on detection of his alleged criminality on 9th May, 1986. Shri Barejia has submitted that PSI Gurkha at Exh. 133 has not explained why he did not think it fit to register the case against the present appellant in the police station at Khavda on that very day, that is, on 9th May, 1986. In absence of any such explanation, runs the submission of Shri Barejia for the appellant, a grave doubt about the involvement of the present appellant in the criminality in question would arise and that benefit of doubt should operate in favour of the present appellant according to well-settled principles of law in that regard.
30. We find no substance in this submission for the simple reason that under the order at Exh. 87 on the record of the case passed by the superior officer PSI Gurkha at Exh. 133 was directed to report back of the action taken by him pursuant to the order at Exh. 87. It has been established on record that PSI Gurkha at Exh. 133 reported the matter to his superior officer on that day itself, that is, 9th May, 1986. It is at Exh. 145 on the record of the case. He has submitted therein that the investigation of the case should be handed over to some higher police officer. In that view of the matter, no fault can be found with PSI Gurkha at Exh. 133 for not registering the criminality in question in the police station at Khavda under Section 154 of the Cr. P. C.
31. The ruling of the Supreme Court in the case of State of Haryana v. Ch. Bhajan Lal, reported in 1992 Cri LJ 527 : (AIR 1992 SC 604), relied on by Shri Barejia for the appellant in support of his aforesaid submission is distinguishable on its own facts.
32. Shri Barejia has then submitted that there was inordinate delay in recording police statements under Section 161 of the Cr. P. C. and that would raise a serious doubt about the present appellant's involvement in the criminality in question. It may be mentioned that this point was not urged before the learned trial Judge. Besides, it has not come on record which police statement was recorded on what date. By virtue of Section 162 of the Cr. P. C., police statements cannot be looked into except for the purpose of contradicting the respective authors thereof in the witness box. No witness was asked as to when his police statement was recorded. It will therefore not be open to Shri Barejia for the appellant to refer to the police statements to show when such statements were recorded.
33. Even if we accept Shri Barejia's statement to the effect that the two statements of PSI Gurkha at Exh. 133 were recorded on 21st May, 1986 and that of police constable Takhhat Singh at Exh. 108 was recorded on 24th May, 1986, we cannot overlook the fact that the investigation was ordered to be handed over to the investigating officer by the order of 19th May, 1986 at Exh. 34 and the FIR at Exh. 130 was lodged on 20th May, 1986. It would be but natural for the investigating officer to carry out the investigation work thereafter by starting recording of statements of witnesses.
34. Shri Barejia for the appellant has then urged that the present appellant was not the owner of the hut in question and the hut belonged to the original accused in Sessions Case No. 38 of 1990 and the learned trial Judge was in error in coming to the conclusion that the hut in question did not belong to that accused. We do not think it necessary to examine this case in view of the fact that there is no appeal before us challenging the acquittal of the accused in Sessions Case No. 38 of 1990.
35. We are in respectful agreement with Shri Barejia for the appellant that it is for the prosecution to prove its case against the accused beyond any reasonable doubt and it cannot cash in on the weaknesses, if any, in the defence version. No authority is needed in support of these first principles of criminal law. Shri Barejia for the appellant has tried to show certain rulings on the point but we have thought it fit not to refer to them in this judgment with a view not to overburdening it by elaborately discussing the principles enunciated therein.
36. In view of our aforesaid discussion, we are of the opinion that the learned trial Judge has made no error or mistake in convicting the present appellant. We are unable to accept the submission urged before us by Shri Barejia for the appellant that the sentence imposed by the learned trial Judge deserves to be reduced. The learned trial Judge has given cogent, and convincing reasons for imposing substantive sentence of rigorous imprisonment for 7 years on the present appellant. It cannot be gainsaid that the substantive sentence of rigorous imprisonment can bo up to 14 years. We feel that the learned trial Judge was somewhat liberal in the instant case keeping in mind the gravity of the offence. No one can be permitted to act against the interests of the nation. The purpose of punishment is also deterrent. In that view of the matter, we are disinclined to interfere with the order of sentence passed by the learned trial Judge.
37. In the result, this appeal fails. It is hereby dismissed.