- (1.) THE Preventive Sub-Inspector, Excise, Pokharlal and the Excise Inspector Bhilwara, Banwarilal, while on patrolling duty, in the morning of March 2 1966, checked the accused Peeru, who was going towards Kankroli from the village Potlan. THE Excise officials recovered opium, weighing 1 Kg. 650 grams in a plastic bag tied to the waist of Peeru. THE opium was seized by the Excise party under memo Ex. P. 1. Sample weighing 30 grms. was taken and duly sealed. A written report Ex. P. 2 of this happening was given by the Preventive Sub-Inspector Opium to the Station House Officer, Gangapur, the same day at 4 p. m. THE seized article and the accused were also produced before him. THE S. H. O. registered a case and started investigation. Sealed sample was sent to the Chemical Examiner, Jaipur, for chemical examination with constable Bheru Giri, P. W. 2. THE Chemical Examiner sent his opinion (Ex. P. 7) that the sample was found to be of opium. Its morphine content was 1 25%. After the investigation was concluded, a challan was put up in the court of Munsif Magistrate, Gangapur, against the accused Peeru to face trial under sec. 9/4 of the Opium Act. THE accused denied to have committed any offence. In support of its case, the prosecution examined 6 witnesses. In his statement, recorded under sec. 342, Cr. P. C , the accused stated that on the date of the incident the police was pursuing a certain person, and in the course of that follow-up he was forcibly arrested and was taken to the warehouse, Sahadan. THE police also foisted a bag on him containing opium. Prior to that he was not having any opium with him. He examined Ramlal D. W. 1, and Kasim Khan, D. W. 2. Eventually the trial court, by its judgment dated January 31, 1968, convicted the accused under sec. 9/4 of the Opium Act, 1878, and sentenced him to nine months' rigorous imprisonment and to pay a fine of Rs. 200/-, in default to further suffer rigorous imprisonment for two months. THE accused took an appeal against that judgment in the court of learned Sessions Judge, Bhilwara. THE appellate court maintained the substantive sentence to six months' rigorous imprisonment. THE sentence of fine was, however, kept undisturbed.
(2.) AGGRIEVED against the above judgment, the present revision application has been filed on behalf of the accused Peeru. The only point raised by learned counsel for the petitioner is that before the accused was searched by the Excise Inspector, Banwarilal and the Preventive Sub-Inspector Pokharlal, P. W. 3, it was incumbent upon them to record in writing the grounds of their belief and specify in such writing, so far as possible, the thing for which the search was to be made in accordance with the provisions of sec. 165, Cr. P. C. In this case, the learned counsel adds, there is no evidence whether the Excise Officials had reasonable grounds for believing that anything necessary for the purposes of investigation could be found with the accused. The Excise officials were bound to record in writing the reasons of their belief but such a writing is not forthcoming. Therefore, the search made by the Excise Officials is illegal and it vitiates the whole proceeding. Learned Deputy Government Advocate, on the other hand, urged that no specific question was put to the prosecution witnesses in the course of their cross examination whether they entertained reasonable belief in regard to the possession of the opium and whether they recorded in writing the grounds of their belief. In the absence of such question, the legitimate presumption would be that the official act was done in a regular manner and should be presumed to have been rightly done. Sub-sec. (1) and (5) of sec. 165, Cr. P. C. reads as under : " (1) Where an officer in charge 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 investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, 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. (5) Copies of any record made under sub-sec. (1) sub-sec. (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate : Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost. " Sec. 165, Cr. P. C. , provides an essential safe-guard for searches to be carried out by the police. Sec. 165, was enacted as an exception to the general law for searches, as it was recognized that in certain exceptional exigencies it was necessary to empower responsible police officers to carry out searches without first applying to the court for authority. With a view to check the abuse of power, Legislature provided special safe guard laid down that the reasons for the exercise of the emergency use of the powers must be recorded in writing and further that the copy thereof should be sent to the nearest Magistrate forthwith. The Legislature by enacting sec. 165 (5), Cr. P. C. , intended that in all cases reasons for the searches should be recorded and sent to the nearest Magistrate before the search is carried out. The provisions, contained in sub-sec. (5) of sec. 165, Cr. P. C, are, beyond doubt, of an imperative nature. For this proposition of law, support is sought from Emperor vs. Mohammad Shah (l ). In that case it has been observed that if reasons are not recorded prior to search, the search is without jurisdiction and bad in law. Likewise in State vs. Rehman (2), it has been observed that if there is no evidence to suggest that the reasons were recorded before the Excise Officer proceeded to take the search, the search could not be held to be in accordance with law and if the accused resisted the search, no offence under sec. 353, could be brought home to the accused. The above case went upto the Supreme Court (State vs. Rehman) (3) and His Lordship Subba Rao, J. , speaking for the Court, observed that the provisions of sec. 165, Cr. P. C. , must be followed in the matter of searches. The recording of reasons is important specially in the matter of search, and to ignore it is to ignore material part governing searches. If that is ignored, it cannot be said that the search is carried out in accordance with the provisions of the Criminal Procedure Code. It would in fact be a search made in contravention of the provisions of the Code. I have gone through the statements of the prosecution witnessess. P. W. 1 Bansidhar says that contraband opium tied on the stomach of the accused was recovered by the Excise officials in his presence. Sample extracted from the opium was taken by the Excise Officials. It was duly labeled and sealed. The recovery memo Ex P. l was prepared in his presence and it bears his signature. The witness also says that the opium Ex M and Ex. M. 1 is the same which was recovered in his presence from the possession of the accused, No question was put to the witness on the point in issue. Bheru Giri, P. W. 2, says that on March l7, 1966, he was posted at the Police station, Gangapur. He took the sample of the opium duly sealed to the Chemical Examiner and handed over that sample to him. He obtained a receipt from the Chemical Examiner and produced it before the Station House Officer. The sample was not tampered with on the way. P. W. 3 Pokharlal also supports the whole prosecution version. He says that the opium was recovered from the possession of the accused. A sample was taken from that opium. Both the opium and the sample were duly sealed. A specimen seal was also put on Ex. P. 1 and Ex. P. 3. Both the specimen seal and the sealed sample were sent to the Chemical Examiner. Opium Ex. Ml bears his signature as also the signatures of the Motbirs. In the course of the cross examination the witness was asked whether he maintained any tour diary. His answer was in the affirmative. He further said that the diary was at Chittor. No specific question was put to the witness whether he recorded in writing reasons before conducting the search. P. W. 4, Banwarilal, Excise Inspector, Bhilwara, was also not put any such precise question. Laduram, P. W. 5, is the Investigating Officer. No cross examination of this witness appears to be directed to the point in issue. Illustration (e) to sec. 114, Evidence Act, lays down that the court may presume that all official acts have been regularly performed i. e. , if an official act is proved to have been performed, it may be presumed to have been regularly performed. A party, who alleges that the statutory provision was not followed, has to show by proper evidence that the requisite legal procedure was not followed. Where there is general evidence of acts having been regular and legally done, the court would normally repose confidence on the official act having been properly done. In other words, there is a presumption of regularity in respect of official acts and all official things are presumed to be rightly done : vide Gangaram vs. State (4 ). It was for the party who challenged such regularities to plead and prove his case. The illustration also permits a presumption to be drawn in matters of procedure. In the present case, there is nothing on the record to show that the official concerned had put down in writing the grounds of their belief. No specific cross examination on the point involved appears to have been directed. Mere putting a general question about the maintenance of the court diary to the Preventive Sub-Inspector Excise, Pokharlal, P. W. S. cannot lead the court to infer that the witness was put a precise question as to whether he recorded in writing the grounds of his belief before the search was conducted. In that view of the matter, the court can have resort to the presumption that the official duty can be presumed to have been rightly done. The authorities cited by learned counsel for the petitioner do not deal with that the official concerned is bound to record in writing the grounds of his belief before the search is necessary. It may also be stated here that where the provisions of sec. 165, Cr. P. C. are contravened, two results shall follow : firstly, the search can be resisted by the person who is sought to be searched. Secondly, because of the illegality of the search, the court may be inclined to examine carefully the evidence recording the seizure. Beyond these two consequences, no further consequence ensues and the seizure of the article is vitiated : vide Radha Kishan vs. State of U. P. (5 ). That apart, no grievance was made either before the trial court or the court of sessions, that there was any such contravention and that the accused was prejudiced thereby. Sec. 10 of the Opium Act, runs as follows: - "in prosecution under sec. 9 it should be presumed until the contrary is proved, that all opium for which the accused person is unable to account for satisfactorily, is opium in respect of which he has committed the offence under this Act. " The legislature has specifically enacted this section in order to see that offences under this Act may not be left unpunished, or mere technicalities of general criminal law. The section provides that if opium is recovered then the persons possessing it will be presumed to have committed the offence unless they prove their innocence. Sec. 10 sets out an exceptional rule of evidence. By virtue of this section all that the prosecution had to do is to show that the accused was in possession of contraband opium, and if the accused cannot satisfactorily account for it, the court has to presume that he is guilty unless the contrary is proved. In the present case as the opium in question has been proved to have been in possession of the accused, the burden shifts on him to account for it satisfactorily, which he has failed to do. Here, there is no manner of doubt that the accused was in possession of the opium and the same was recovered from him. It was for him to establish that he was not in its possession or that the recovery was not satisfactory or that the recovery should not be relied upon on the basis of its unsatisfactory character. Where, as here, the trial court, and the appellate court chose to accept the evidence of the prosecution with regard to the fact of the seizure, that being a question to be decided by the court of facts, the High Court in the exercise of its revisional jurisdiction would not re-examine the evidence for satisfying itself as to the correctness or otherwise of the conclusions arrived at by the court below. For this reason also this revision application hardly merits any consideration. In the result, this revision petition having no force is dismissed. The petitioner's conviction and sentence, as awarded by the Sessions Judge, Bhilwara are maintained. The District Magistrate. Bhilwara, is directed to take necessary steps for the arrest of the accused and sending him to jail to undergo the sentence imposed by the Sessions Judge, Bhilwara. . ;