Mohd. Yunus Gulam Rasool Botomiya Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No.1631 of 2007
Petitioner: Mohd. Yunus Gulam Rasool Botomiya
Respondent: State of Maharashtra
Apeal: Criminal Appeal No.1631 of 2007
Judges: P. Sathasivam, B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3) and 5, 15 Arms Act, 1959, Sections 3 & 7 read with Section 25 (1A) (1B)(a) – Confessional statement of appellant Consequent recoveries from terrace of building R Arms ammunition found at the instance of appellant A- 47 in a notified area in presence of S’, panch witness and ‘E’ – Panchnama prepared by ‘E’ and signature of panch witnesses taken – Signature of appellant not taken – Whether panchnama without the signature of appellant loses its significance Whether recovery made in public place gets vitiated FSL report positive – Appellant producing passport showing himself to be not a resident of building ‘R’. Held there is no law or precedent that signature of accused is must on panchnama. The recovery of arms and ammunition in notified area stood established, as there is no record to show that statements of E and S were not trust worthy. FSL report showing assault rifle in working condition and bullets to be live. Mere producing of passport will not alienate his connection with building R. Recovery, merely because it is made from public place will not stand vitiated, as it is appellant who led police party to terrace and got the arms recovered from the heap of waste. Where arms were hidden was within his knowledge. Conviction under Section 3 (3) & 5 of TADA and Section 3 &7 read with Section 25 (1A) & (1B)(a) of Arms Act, maintained.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3) and 5, 15 Arms Act, 1959, Sections 3 & 7 read with Section 25 (1A) (1B)(a) – Confessional statement of appellant Consequent recoveries from terrace of building R Arms ammunition found at the instance of appellant A- 47 in a notified area in presence of S’, panch witness and ‘E’ – Panchnama prepared by ‘E’ and signature of panch witnesses taken – Signature of appellant not taken – Whether panchnama without the signature of appellant loses its significance Whether recovery made in public place gets vitiated FSL report positive – Appellant producing passport showing himself to be not a resident of building ‘R’. Held there is no law or precedent that signature of accused is must on panchnama. The recovery of arms and ammunition in notified area stood established, as there is no record to show that statements of E and S were not trust worthy. FSL report showing assault rifle in working condition and bullets to be live. Mere producing of passport will not alienate his connection with building R. Recovery, merely because it is made from public place will not stand vitiated, as it is appellant who led police party to terrace and got the arms recovered from the heap of waste. Where arms were hidden was within his knowledge. Conviction under Section 3 (3) & 5 of TADA and Section 3 &7 read with Section 25 (1A) & (1B)(a) of Arms Act, maintained.
Held:
The recovery of arms and ammunition from the appellant (A-47) in a notified area of Greater Bombay has been established by Ekanth Jadhav (PW.606) and Samir (PW.34). The recovery was made at his instance vide Memorandum Panchnama (Ex.No.93) and Seizure Panchnama (Ex.No.94). Since the recovery has been made in a notified area of Greater Bombay, the statutory presumption arose that the arms were acquired by the appellant for the purpose of committing terrorist acts. It is for the accused to discharge the presumption. (Para 84)
Nothing on record to show that Samir (PW.34) and Jadhav (PW.606) would depose falsely against the appellant (A-47) as they had faced the long cross-examination but nothing could surface to make their evidence unworthy of reliance for the matter deposed by them. The depositions made by Samir (PW.34) and Jadhav (PW.606) corroborated the evidence of each other and again their evidence stand corroborated by the recovery of Panchnama. Samir (PW.34) is an independent and natural witness and merely because he appeared for the prosecution, or he hails from the Worli area, it cannot be presumed that he had been deposing falsely at the behest of the police/prosecution. The appellant had full knowledge regarding contraband material being at a place stated by him. The fact that it had been recovered on the basis of disclosure statement of the appellant (A-47) and he has led the police team to that place proves the recovery. It stands further proved that the AK- 56 rifle sent for FSL was an assault rifle in working condition, and the bullets recovered were live bullets. Merely producing the copy of the passport to show that appellant (A-47) was not resident of the Razia building does not show that the appellant (A- 47) had no concern with the premises in Razia building. There was recovery of one AK-56 rifle, 980 cartridges of AK-56 rifle, 32 magazines of the same. (Para 85)
There is neither rule of law nor legal precedent that the signatures of the accused (A-47) is required to be obtained upon the Memorandum Panchnama or the Discovery Panchnama. (Para 86)
The submission made by Mr. Mushtaq Ahmad, learned counsel appearing on behalf of the appellant that the recovery was made from a public place and therefore, could not be relied upon and cannot be accepted, as it is the accused alone on whose disclosure statement the recovery was made and it is he alone, who is aware of the place he has hidden the same. It cannot be presumed that the other persons having access to the place would be aware that some accused after the commission of an offence has concealed the contraband material beneath the earth or in the garbage. (Para 87)
We do not see any force in the appeal. It lacks merit and is, accordingly, dismissed. (Para 92)
JUDGEMENT:
Judgment (Contd.)
77. This appeal has been preferred against the judgment and order dated 30.5.2007 passed by a Special Judge of the Designated Court under the TADA in Bombay Blast Case No.1 of 1993 by which the appellant (A-47) was found guilty for offence punishable under Section 3(3) TADA and sentenced to suffer RI for 6 years and ordered to pay a fine of Rs.25,000/- and in default of payment of fine ordered to suffer further RI for a period of 6 months under Section 5 TADA, and sentenced to suffer RI for 6 years and ordered to pay a fine of Rs.25,000/- and in default of payment of fine ordered to suffer further RI for a period of six months; and under Sections 3 and 7 read with Section 25(1-A) (1- B)(a) of Arms Act, but no separate sentence awarded on said count.
All the sentences awarded to the appellant (A-47) were ordered to run concurrently.
Hence, this appeal.
78. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant was further charged with keeping in possession one AK-56 rifle, 980 cartridges and 132 magazines of AK-56 rifles between January and April, knowing that they were being smuggled into the country for committing terrorist acts, thereby committing an offence under Section 3(3) TADA.
B. Further, he was charged with the unauthorised possession of firearms in the notified area of Greater Bombay, thereby committing the offence under Section 5 TADA.
C. He was further charged with aiding and abetting terrorists under Section 6 TADA and under Sections 3 and 7 read with Section 25(1-A) and (1-B) (a) of the Arms Act.
79. Mr. Mushtaq Ahmad, learned counsel for the appellant has submitted that the appellant is an auto-rickshaw driver and a simple recovery being made at the behest of the appellant cannot be enough to implicate him. It was further urged that the recovery was made from a public place and therefore, loses its significance. Timings and procedure of recovery are doubtful as signatures of the appellant were not taken on the panchnama. Thus, the appeal should be allowed.
80. Mr. Mukul Gupta, learned senior counsel for the State has vehemently opposed the appeal submitting that the recovery effected on the basis of the disclosure statement of the appellant has been corroborated by several witnesses. Thus, no fault could be found with the impugned judgment. Therefore, the appeal is liable to be dismissed.
81. We have considered the rival submissions made by learned counsel for the parties and perused the record.
82. The evidence against the appellant (A-47) is the recovery of weapons made at his instance. On 2.4.1993 at the instance of appellant, Eknath Jadhav (PW.606) in the presence of Samir (PW.34) Panch Witness prepared the memorandum Panchnama Exh.93. In pursuance of the same, the accused led the Panchas and the Police to the terrace of Raziya Manzil near Radhe Shyam Theatre. Samir (PW.34) in his examination-in-chief stated that bags contained one rifle and six swords, and the blue coloured rexine bag contained 980 cartridges and 32 rifle magazines which were taken out.
83. The police seized the said articles and seizure panchnama (Ext.94) was prepared by Jadhav (PW.606) upon obtaining the signatures of the panch witnesses. The said articles were sent to FSL for expert opinion and a positive FSL Report was received by the Police.
84. The recovery of arms and ammunition from the appellant (A-47) in a notified area of Greater Bombay has been established by Ekanth Jadhav (PW.606) and Samir (PW.34). The recovery was made at his instance vide Memorandum Panchnama (Ex.No.93) and Seizure Panchnama (Ex.No.94). Since the recovery has been made in a notified area of Greater Bombay, the statutory presumption arose that the arms were acquired by the appellant for the purpose of committing terrorist acts. It is for the accused to discharge the presumption.
85. There is nothing on record to show that Samir (PW.34) and Jadhav (PW.606) would depose falsely against the appellant (A-47) as they had faced the long cross-examination but nothing could surface to make their evidence unworthy of reliance for the matter deposed by them. It was stated by Jadhav (PW.606) in his cross examination that he had not obtained the signatures of the accused on Ex.93, i.e. Panchnama. The depositions made by Samir (PW.34) and Jadhav (PW.606) corroborated the evidence of each other and again their evidence stand corroborated by the recovery of Panchnama. Samir (PW.34) is an independent and natural witness and merely because he appeared for the prosecution, or he hails from the Worli area, it cannot be presumed that he had been deposing falsely at the behest of the police/prosecution. The information divulged by appellant (A-47) i.e., the one recorded in Panchnama Ex.93 revealed that the appellant had full knowledge regarding contraband material being at a place stated by him. The fact that it had been recovered on the basis of disclosure statement of the appellant (A-47) and he has led the police team to that place proves the recovery. It stands further proved that the AK- 56 rifle sent for FSL was an assault rifle in working condition, and the bullets recovered were live bullets. The submission made at the behest of the appellant (A-47) that alleged recovery was from open place and therefore, was not worth credence and the evidence on record failed to establish consensus position by the appellant (A-47) of contraband material, does not hold any merit. More so, merely producing the copy of the passport to show that appellant (A-47) was not resident of the Razia building does not show that the appellant (A- 47) had no concern with the premises in Razia building. The recovery has been made from the terrace of the premises in Razia buildings and the contraband material had been found hidden beneath the waste material placed therein. There cannot be any dispute regarding the timings, as the first Panchnama has been prepared early in the morning at 5 a.m. and then recovery was made later from the place pointed out by the appellant (A-47) himself. Therefore, there cannot be any fault with the timings etc. for the reason that the first Panchnama was prepared at 5 to 5.30 a.m. and the second one was at about 7.00 a.m. to 7.30 a.m. as disclosed by Jadhav (PW.606) in his cross-examination. Thus, it shows that there was recovery of one AK-56 rifle, 980 cartridges of AK-56 rifle, 32 magazines of the same. Entries of the same had been made in the Panchnama giving full details, as to how those articles were found wrapped in gunny bags, rexine etc. and how they were subsequently wrapped after the recovery. Samir (PW.34), the panch witness who identified the recovered articles in the court, pointing out that the said contraband had been recovered at the behest of the appellant (A-47). Letter B had been written on the butt of the AK-56 rifle which was also found on the said rifle when examined in the court. In his statement under Section 313 Cr.P.C. before the court, the appellant (A-47) denied all the allegations made by the prosecution and stated that he had been falsely roped in. Further, he had not made any disclosure statement nor any recovery had been made at is behest. The Police was searching one Botomiya and arrested the appellant (A-47) though his name is Bhoronliya.
86. The Designated Court after considering the entire evidence on record came to the conclusion that evidence of Samir (PW.34) and Jadhav (PW.606) can be relied upon. The contraband material had been recovered from Razia buildings at the behest of the appellant (A-47) and the recovery was rightly made and Panchnama in this regard was worth reliance. There is neither rule of law nor legal precedent that the signatures of the accused (A-47) is required to be obtained upon the Memorandum Panchnama or the Discovery Panchnama. There is no force in this submission made at the behest of the appellant (A-47). Though, the contraband articles had been recovered from open space but the articles had been concealed under the waste material, so it loses the significance of being recovered from the open space on the terrace. The recovery stood established by cogent evidence.
87. The submission made by Mr. Mushtaq Ahmad, learned counsel appearing on behalf of the appellant that the recovery was made from a public place and therefore, could not be relied upon and cannot be accepted, as it is the accused alone on whose disclosure statement the recovery was made and it is he alone, who is aware of the place he has hidden the same. It cannot be presumed that the other persons having access to the place would be aware that some accused after the commission of an offence has concealed the contraband material beneath the earth or in the garbage.
88. In State of Himachal Pradesh v. Jeet Singh (supra), this Court held:
There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is open or accessible to others. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others.
89. Similarly, in Gurjinder Singh v. State of Punjab, [JT 2011 (2) SC 580], this Court held that if a weapon was hidden by digging the earth and could be recovered only be removing the earth, it is not desirable to entertain the argument that recovery had been made from a public place which could have been easily accessible to anyone. The Court further held:
In our opinion, such trivial mistakes should not give any benefit of doubt or any sort of benefit to the accused. In fact, the recovery was made in the presence of Ajaib Singh, Assistant Sub-Inspector and Balbir Singh, Head Constable. It is also not correct that the memo of recovery was not produced before the Court. Exhibit P-46, which reveals the fact about the statement made by the accused in relation to pistol incorporates the entire statement made by the accused. Therefore, the said document itself incorporates the statement made by the accused. Moreover, simply because the recovery was made in the presence of policemen would not adversely affect the prosecution case.
90. In State Govt. of NCT of Delhi v. Sunil & Anr., [JT 2000 (Suppl.3) SC 267 : (2001) 1 SCC 652], this Court held:
In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses…The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
91. In view of the above, merely because the contraband was recovered from a public place, i.e. a place accessible to the public at large, the same does not mean that the recovery is to be discarded. In case, the articles had been hidden by digging up the earth, covering the same up with garbage or other material, the public may not have taken note of it. The same remained in the specific knowledge of the accused, i.e. where and also the manner in which the said articles were hidden. Moreover, the recovery cannot be discarded for want of signature of the accused on the recovery memo.
92. In view of above, none of the arguments advanced on behalf of the appellant is tenable. We do not see any force in the appeal. It lacks merit and is, accordingly, dismissed.
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77. This appeal has been preferred against the judgment and order dated 30.5.2007 passed by a Special Judge of the Designated Court under the TADA in Bombay Blast Case No.1 of 1993 by which the appellant (A-47) was found guilty for offence punishable under Section 3(3) TADA and sentenced to suffer RI for 6 years and ordered to pay a fine of Rs.25,000/- and in default of payment of fine ordered to suffer further RI for a period of 6 months under Section 5 TADA, and sentenced to suffer RI for 6 years and ordered to pay a fine of Rs.25,000/- and in default of payment of fine ordered to suffer further RI for a period of six months; and under Sections 3 and 7 read with Section 25(1-A) (1- B)(a) of Arms Act, but no separate sentence awarded on said count.
All the sentences awarded to the appellant (A-47) were ordered to run concurrently.
Hence, this appeal.
78. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant was further charged with keeping in possession one AK-56 rifle, 980 cartridges and 132 magazines of AK-56 rifles between January and April, knowing that they were being smuggled into the country for committing terrorist acts, thereby committing an offence under Section 3(3) TADA.
B. Further, he was charged with the unauthorised possession of firearms in the notified area of Greater Bombay, thereby committing the offence under Section 5 TADA.
C. He was further charged with aiding and abetting terrorists under Section 6 TADA and under Sections 3 and 7 read with Section 25(1-A) and (1-B) (a) of the Arms Act.
79. Mr. Mushtaq Ahmad, learned counsel for the appellant has submitted that the appellant is an auto-rickshaw driver and a simple recovery being made at the behest of the appellant cannot be enough to implicate him. It was further urged that the recovery was made from a public place and therefore, loses its significance. Timings and procedure of recovery are doubtful as signatures of the appellant were not taken on the panchnama. Thus, the appeal should be allowed.
80. Mr. Mukul Gupta, learned senior counsel for the State has vehemently opposed the appeal submitting that the recovery effected on the basis of the disclosure statement of the appellant has been corroborated by several witnesses. Thus, no fault could be found with the impugned judgment. Therefore, the appeal is liable to be dismissed.
81. We have considered the rival submissions made by learned counsel for the parties and perused the record.
82. The evidence against the appellant (A-47) is the recovery of weapons made at his instance. On 2.4.1993 at the instance of appellant, Eknath Jadhav (PW.606) in the presence of Samir (PW.34) Panch Witness prepared the memorandum Panchnama Exh.93. In pursuance of the same, the accused led the Panchas and the Police to the terrace of Raziya Manzil near Radhe Shyam Theatre. Samir (PW.34) in his examination-in-chief stated that bags contained one rifle and six swords, and the blue coloured rexine bag contained 980 cartridges and 32 rifle magazines which were taken out.
83. The police seized the said articles and seizure panchnama (Ext.94) was prepared by Jadhav (PW.606) upon obtaining the signatures of the panch witnesses. The said articles were sent to FSL for expert opinion and a positive FSL Report was received by the Police.
84. The recovery of arms and ammunition from the appellant (A-47) in a notified area of Greater Bombay has been established by Ekanth Jadhav (PW.606) and Samir (PW.34). The recovery was made at his instance vide Memorandum Panchnama (Ex.No.93) and Seizure Panchnama (Ex.No.94). Since the recovery has been made in a notified area of Greater Bombay, the statutory presumption arose that the arms were acquired by the appellant for the purpose of committing terrorist acts. It is for the accused to discharge the presumption.
85. There is nothing on record to show that Samir (PW.34) and Jadhav (PW.606) would depose falsely against the appellant (A-47) as they had faced the long cross-examination but nothing could surface to make their evidence unworthy of reliance for the matter deposed by them. It was stated by Jadhav (PW.606) in his cross examination that he had not obtained the signatures of the accused on Ex.93, i.e. Panchnama. The depositions made by Samir (PW.34) and Jadhav (PW.606) corroborated the evidence of each other and again their evidence stand corroborated by the recovery of Panchnama. Samir (PW.34) is an independent and natural witness and merely because he appeared for the prosecution, or he hails from the Worli area, it cannot be presumed that he had been deposing falsely at the behest of the police/prosecution. The information divulged by appellant (A-47) i.e., the one recorded in Panchnama Ex.93 revealed that the appellant had full knowledge regarding contraband material being at a place stated by him. The fact that it had been recovered on the basis of disclosure statement of the appellant (A-47) and he has led the police team to that place proves the recovery. It stands further proved that the AK- 56 rifle sent for FSL was an assault rifle in working condition, and the bullets recovered were live bullets. The submission made at the behest of the appellant (A-47) that alleged recovery was from open place and therefore, was not worth credence and the evidence on record failed to establish consensus position by the appellant (A-47) of contraband material, does not hold any merit. More so, merely producing the copy of the passport to show that appellant (A-47) was not resident of the Razia building does not show that the appellant (A- 47) had no concern with the premises in Razia building. The recovery has been made from the terrace of the premises in Razia buildings and the contraband material had been found hidden beneath the waste material placed therein. There cannot be any dispute regarding the timings, as the first Panchnama has been prepared early in the morning at 5 a.m. and then recovery was made later from the place pointed out by the appellant (A-47) himself. Therefore, there cannot be any fault with the timings etc. for the reason that the first Panchnama was prepared at 5 to 5.30 a.m. and the second one was at about 7.00 a.m. to 7.30 a.m. as disclosed by Jadhav (PW.606) in his cross-examination. Thus, it shows that there was recovery of one AK-56 rifle, 980 cartridges of AK-56 rifle, 32 magazines of the same. Entries of the same had been made in the Panchnama giving full details, as to how those articles were found wrapped in gunny bags, rexine etc. and how they were subsequently wrapped after the recovery. Samir (PW.34), the panch witness who identified the recovered articles in the court, pointing out that the said contraband had been recovered at the behest of the appellant (A-47). Letter B had been written on the butt of the AK-56 rifle which was also found on the said rifle when examined in the court. In his statement under Section 313 Cr.P.C. before the court, the appellant (A-47) denied all the allegations made by the prosecution and stated that he had been falsely roped in. Further, he had not made any disclosure statement nor any recovery had been made at is behest. The Police was searching one Botomiya and arrested the appellant (A-47) though his name is Bhoronliya.
86. The Designated Court after considering the entire evidence on record came to the conclusion that evidence of Samir (PW.34) and Jadhav (PW.606) can be relied upon. The contraband material had been recovered from Razia buildings at the behest of the appellant (A-47) and the recovery was rightly made and Panchnama in this regard was worth reliance. There is neither rule of law nor legal precedent that the signatures of the accused (A-47) is required to be obtained upon the Memorandum Panchnama or the Discovery Panchnama. There is no force in this submission made at the behest of the appellant (A-47). Though, the contraband articles had been recovered from open space but the articles had been concealed under the waste material, so it loses the significance of being recovered from the open space on the terrace. The recovery stood established by cogent evidence.
87. The submission made by Mr. Mushtaq Ahmad, learned counsel appearing on behalf of the appellant that the recovery was made from a public place and therefore, could not be relied upon and cannot be accepted, as it is the accused alone on whose disclosure statement the recovery was made and it is he alone, who is aware of the place he has hidden the same. It cannot be presumed that the other persons having access to the place would be aware that some accused after the commission of an offence has concealed the contraband material beneath the earth or in the garbage.
88. In State of Himachal Pradesh v. Jeet Singh (supra), this Court held:
There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is open or accessible to others. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others.
89. Similarly, in Gurjinder Singh v. State of Punjab, [JT 2011 (2) SC 580], this Court held that if a weapon was hidden by digging the earth and could be recovered only be removing the earth, it is not desirable to entertain the argument that recovery had been made from a public place which could have been easily accessible to anyone. The Court further held:
In our opinion, such trivial mistakes should not give any benefit of doubt or any sort of benefit to the accused. In fact, the recovery was made in the presence of Ajaib Singh, Assistant Sub-Inspector and Balbir Singh, Head Constable. It is also not correct that the memo of recovery was not produced before the Court. Exhibit P-46, which reveals the fact about the statement made by the accused in relation to pistol incorporates the entire statement made by the accused. Therefore, the said document itself incorporates the statement made by the accused. Moreover, simply because the recovery was made in the presence of policemen would not adversely affect the prosecution case.
90. In State Govt. of NCT of Delhi v. Sunil & Anr., [JT 2000 (Suppl.3) SC 267 : (2001) 1 SCC 652], this Court held:
In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses…The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
91. In view of the above, merely because the contraband was recovered from a public place, i.e. a place accessible to the public at large, the same does not mean that the recovery is to be discarded. In case, the articles had been hidden by digging up the earth, covering the same up with garbage or other material, the public may not have taken note of it. The same remained in the specific knowledge of the accused, i.e. where and also the manner in which the said articles were hidden. Moreover, the recovery cannot be discarded for want of signature of the accused on the recovery memo.
92. In view of above, none of the arguments advanced on behalf of the appellant is tenable. We do not see any force in the appeal. It lacks merit and is, accordingly, dismissed.
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