Judgment:
Joshi, J.
1. The instant criminal revision petition under Section 397/401 Cr.P.C. has been filed against the appellate judgment of the learned Additional District and Sessions Judge, Bali in criminal appeal No. 9/87, confirming the judgment of Munsiff and Judicial Magistrate, Desuri dated 16th July, 1987 passed in criminal original case No. 31/82 convicting the petitioner Under Section. 4/9 of the Opium Act and sentencing him to rigorous imprisonment for one year.
2. Heard Mr. P.N. Mohnani, learned counsel for the petitioner and Mrs. Chendra Lekha, learned Public Prosecutor.
3. It was argued by the learned counsel for the petitioner that there is non-compliance of Section 165 of Cr.P.C. As per Section 16 of the Opium Act (in short 'the Act' hereinafter) while a search is taken Under Section 16 of the Act, the provisions of Section 165 of Cr.P.C. will apply and as no reasonable grounds have been recorded and nothing has been reduced in writing by P.W. 6 Abhay Karan to show that search under Section 14 or Section 15 of the act was made in accordance with the provisions of the Code of Criminal Procedure and in absence of the compliance of Section 165 of Cr.P.C., the conviction of the petitioner is bad and cannot be maintained. For this proposition, he relied upon the following three judgments of this Court:-
(1) Mithu Khan v. State of Rajasthan (1)
(2) State of Rajasthan v. Balla Singh (2)
(3) Pitamber Das v. State of Rajasthan (3)
4. In the alternative, learned counsel for the petitioner has prayed that the accused-petitioner may be released on probation.
5. Mrs. Chendra Lekha, learned Public Prosecutor has supported the judgment of the first appellate Court and argued that the order passed by the Additional Sessions Judge, Bali is legal, proper and is liable to be maintained and the revision of the petitioner be dismissed.
6. To appreciate the rival submission, the relevant provisions of law are to be looked into.
7. Section 165 of Cr.P.C. reads as under:-
'165. Search by police officer.(1) whenever an offence incharge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigation may be found in any place within the limits of the police station of which he is incharge, or to which he is attached, and that such thing after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search or cause search to be made, for such thing in any place within the limits of such station.'
8. Section 14 of the Opium Act is as follows:-
'14. Any officer of the department of Central Excise, Narcotics, Drugs Control, Customs, Revenue, Police or Excise, superior in rank to a peon or constable, authorized in this behalf by the Central Government or the State Government, who has reason to believe, from personal knowledge or from information given by any person and taken down in writing, that opium liable to confiscation under this Act is kept or concealed in any building, vessel or enclosed place, may, between sunrise and sunset,-
(a) enter into any such building, vessel or place;
(b) in case of resistance, break open any door and remove any other obstacle to such entry;
(c) seize such opium and any other thing which he has reason to believe to be liable to confiscation under Section 11 or any other law for the time being in force relating to opium; and
(d) detain and search, and, if he thinks proper, arrest, any person whom he has reason to believe to be guilty of any offence relating to such opium under this or any other law for the time being in force.'
9. Section 15 of the Opium Act reads as under:
'Any officer of any of the said departments
(a) seize, in any open place or in transit, any opium or other thing which he has reason to believe to the liable to confiscation under Section 11 or any other law for the time being in force relating to opium.'
10. Section 16 of the Opium Act, 1978 is very material which prescribes that all searches under Section 14 or Section 15 shall be made in accordance with the provisions of the Code of Criminal Procedure.
11. In Mithukhan v. State of Rajasthan (supra), the case of State of Rajasthan v. Rehman (4), was relied, in which it was held that recording of reasons under Section 165 Cr.P.C. is obligatory and its non-compliance makes search illegal.
12. In Radha Kishan v. State of U.P. (5), the Hon'ble Supreme Court held that it may be that where the provisions of Section 103, Cr.P.C. are contravented, 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 the two consequences, no further consequence ensues, and the seizure of the articles is not vitiated. This judgment does not help to the petitioner in the case.
13. The above case was decided by a coram of tree Hon'ble Judges of the Supreme Court, (Hon'ble S.J. Iman, Hon'ble N. Rajagopala Ayyangar and Hon'ble J.R. Mudholkar, JJ.)
14. It was held in State of Maharashtra v. Natwarlal Damodardas Soni (6), that the police had powers under Criminal Procedure Code to search and seize the gold if they had reason to belive that a cognizable offence had been committed in respect thereof. Assuming arguendo, that the search was illegal, then 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. The Court relied the judgment delivered in Radha Kishan v. State of U.P. (supra).
15. In Dr. Pratap Singh and Anr. v. Director of Enforcement, Foreign Exchange Regulation Act and Ors. (7), it was held as under:-
'Section 37(2) provides that 'the provisions of the Code relating to searches, shall so far as may be, apply to searches directed under Section 37(1). Reading the two sections together it merely means that the methodology prescribed for carrying out the search provides in Section 165 of Criminal P.C. has to be generally followed. The expression 'so far as may be' has always been constructed to mean that those provisions may be generally followed to the extent possible. It cannot be said that Section 165(1) of Criminal P.C. has been incorporated by pen and ink in Section 37(2), in view of the positive language employed in the section that the provisions relating to searches shall so far as may be apply to searches under Section 37(1). If Section 16(1) of Criminal P.C. was to be incorporated by pen and ink as Sub-section (2) of Section 37, the legislative draftman ship will have no room for doubt by providing that the provisions of Code of Criminal Procedure relating to searches shall apply to the searches directed or ordered under Section 37(1) except that the power will be exercised by the Director of Enforcement or other officer exercising his power and the will be substituted in place of the Magistrate. The provisions of Sub-section (2) of Section 37 has not been cast in any such language. It merely provides that the search may be carried out according to the method prescribed in Section 165(1) of Criminal P.C. If the duty to record reasons which furnish grounds for entertaining a reasonable belief were to be recorded in advance, the same could have been incorporated in Section 37(1), otherwise a simple one line section would have been sufficient that all searches as required for the purpose of this Act shall be carried out in the manner prescribed in Section 165 of the Code by the officer to be set in the section. In order to give full meaning to the expression 'so far as may be', Sub-section (2) of Section 37 should be interpreted to mean that broadly the procedure relating to search as enacted in Section 165 shall be followed. But if a deviation becomes necessary to carry out the purposes of the Act in which Section 371) is incorporated, it would be permissible except that when challenged before a court of law, jurisdiction will have to be offered for the deviation.'
16. In the above case, the Hon'ble Supreme Court in para 15 of its judgment relied upon the judgment of Radha Kishan v. State of U.P. (supra), and State of Maharashtra v. Natwarlal Damodardas Soni (supra).
17. In Manish Dixit and Ors. v. State of Rajasthan (8), it was held that search cannot be held to be invalid on the ground of absence of examination of independent witness. City people are quite conscious of such consequences and they would normally be wary to signify to such witnessing.
18. In a latest decision Khet Singh v. Union of India (9), the Hon'ble Apex Court considered whether the evidence collected by illegal search or seizure is admissible or not considered series of decisions and one of the earliest decisions is the decision of the Constitution Bench given in Pooran Mal v. Director of Inspection (Investigation), New Delhi (10). Though, the search in the said case was done under the provisions of the Income-tax Act, it is apposite to note the following observation made by the Hon'ble Apex Court:-
'So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search search or seizure.'
17. In State of Punjab v. Baldev Singh (11), the Constitution Bench of the Hon'ble Supreme Court extensively considered the question whether the procedure laid down under Section 50 of the NDPS Act is mandatory or not. It was held that the judgment in Pooran Mal's case (supra) cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can be itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband had been seized during the illicit search. In para 45 of the judgment, it was held that Prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic, society. A conviction resulting from an unfair trial is contrary to our concept of justice, conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned. While considering the aspect of fair trial, the nature of the evidence obtained ant the nature of the safeguard violated are both relevant factors. Courts cannot allowed admission of evidence against an accused, where the Court is satisfied that the evidence has been obtained by a conduct of which the prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused. If after careful consideration of the material on record it is found by the Court that the admission of evidence collected in search conducted in violation of Section 50 would render the trial unfair then that evidence must be excluded.
20. In State of H.P. v. Prithi Chand and (12), it was held that it would thus be settled law that every deviation form the details of the procedure prescribed for search does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on facts and circumstances in each case. The court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon.
21. The case of Radha Kishan, (supra) was also relied by the Hon'ble Apex Court in the above case in para 15 of the judgment.
22. Thus, in view of the judgments of the Hon'ble Apex Court cited above, the law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not ipso facto become inadmissible and the Court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence.
23. In view of the judgments of the Hon'ble Apex Court, the judgments relied by the learned counsel for the petitioner cannot be acted upon.
24. I have gone through the evidence of PW 6 Abhay Karan, who recovered the opium form the possession of the accused in a polyethene bag tied under 'patli' of 'dhoti' worn by him. The evidence of PW 6 Abhay Karan is to the effect that on 27th August 1981 he was SHO. Police Station, Desuri and on that day, a search was made in bus No. RRB 4896 going from Udaipur to Abu. The accused-petitioner was sitting on seat No. 52. He was searched in presence of the motbirs PW 2 Moolchand and PW 3 Baburam (who turned hostile to the prosecution). PW 6 Abhay Karan has further stated that opium was found in the possession the accused, which was found in the possession of the accused, which was smelled and tested and was weighing 1 kg. 30 gms,. of opium was taken as sample vide Ex.P/1 and it was sealed. In his cross-examination, he has denied the documents having prepared in the Police Station. The evidence of Abhay Karan, regarding recovery of the opium from the possession of the accused has been corroborated from the evidence of PW.1 Hari Singh and PW. 4 Man Singh and nothing adverse to the prosecution has been elicited during the cross-examination of these witnesses. Therefore, from the evidence of these witness, it cannot be said that the search and seizure was in complete defiance of the law. There was not possibility of the evidence collected about the possession of the accused likely to have been tampered with or interpolated during the course of such search and seizure. Therefore, it cannot also be said that the evidence is not liable to be admissible in evidence, further, during the cross-examination of PW 6 Abhay Karan, PW 1 Hari Singh, PW. 2 Mool Chand and PW 7 Sajjan Singh, there was no allegation or suggestion that the opium was in any way meddled with by PW 6 Abhay Karan or other officials. Therefore, it cannot be held that either the search and seizure was illegal or the trial has been vitiated. Therefore, in the opinion of the Court, the argument of the learned counsel for the petitioner is not liable to be accepted and is hereby rejected.
25. Both the courts below have evaluated the evidence of the prosecution in right perspective and rightly convicted the accused of the offence charged Under Section 4/9 of the Act.
26. Before the learned Appellate Court, it was argued on behalf of the petitioner that the prosecution has failed to prove that the seal of the recovered articles remained intact from the recovery of the opium to the examination of it by the Chemical Examiner. In my opinion, the Appellate Court after consideration of the evidence of the prosecution was right in rejecting the argument advanced before it.
27. Further, Section 165 Cr.P.C., applies to a search of a place. In the present case, the search was made of the person of the accused. As per provision of Section 3/19 of the Act, a place includes a house, building, shop, the room, booth, tent, vessel, boat and its enclosure. It does not include specifically a bus as has been held in K.L. Sushayya v. State of Karnataka (13). The Hon'ble Supreme Court was dealing with a case under the Mysore Excise Act. It was held in para No. 4 of K.L. Sushayya's case specifically that the definition of the word 'place' under the Mysore Act clearly includes vehicle, which would include a car (in which the alleged article was found). Thus, the judgment of K.L. Sushayya (supra) also cannot help the accused-petitioner. Therefore, the conviction of the accused Under Section 4/9 of the Opium Act is maintained.
28. The learned counsel for the petitioner has contended before me that the matter relates to the year 1981 and the case of the accused-petitioner is covered by the Probation of Offenders Act.
29. At the time of commission of the offence, the petitioner was 30 years of age and now we are in the year 2002. The petitioner has remained in jail for more than .......So looking to the circumstances of the case, the petitioner be released on probation. The learned Public Prosecutor opposed to it.
30. In the facts and circumstances of the case, I think it proper to grant benefit of probation to the petitioner.
31. Consequently, this revision petition is partly allowed. The conviction of the petitioner under Section 4/9 of the Opium Act is maintained, but instead of sentencing him at once to any imprisonment, I hereby direct that the petitioner may be released on probation of good conduct, provided he furnishes a personal bond in the amount of Rs. 5,000/- with one surety in the like amount to the satisfaction of the Additional Sessions Judge, Bali to keep peace and be of good behaviour for a period of one year. The petitioner is allowed one month's time to submit the personal bond and surety bonds failing which he may be arrested and be produced before the concerned Court for passing an appropriate sentence for the offence.
32. The revision is partly accepted and is disposed accordingly.