RAJA RAM JAISWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this appeal by special leave from the judgment of the Patna High Court affirming the conviction of the appellant under Section 47 (a) of the Excise Act and the sentences of rigorous imprisonment for one year and of fine amounting to Rs. 2,000 awarded by the Judicial Magistrate, First Class, Patna, the substantial question which falls for decision is whether a confession made by the appellant and recorded by the Excise Inspector who was investigating the case is inadmissible by reason of the provisions of S. 25 of the Indian Evidence Act, 1872.

(2.) It is not disputed before us by Mr. Chari that on August 3, 1957 a motor car bearing No. WBC 562 was stopped by the Excise Inspector, R.R.P. Sinha (P. W. 1) on the Baylev Road, near the New Secretariat, Patna, at 10.00 p.m. The car belongs to the appellant's brother Radhey Shyam; but he was not at that moment in the car. The car was then being driven by Jagdish Sah and the appellant was sitting by his side. Four other persons were sitting on the back seat. The Excise Inspector searched the car in the presence of three witnesses, Debendra Prasad Singh (P.W. 2), Paresh Nath Prasad Singh (P.W. 3) and Rabindra Prasad Singh (P.W. 4) and recovered from the car five bundles of non-duty paid Nepali Ganja. According to the prosecution four of them were recovered from the luggage boot of the car while one was recovered from the leg space in front of the front seat of the car. According to the appellant, however, no ganja was carried in the car and, therefore, none was seized from the car. Further, according to the prosecution, the appellant produced the keys with which the luggage boot was opened. The Excise Inspector made seizure memo Ex. 2 and recorded the statements of all the persons who were in the car, including the appellant. Exhibit 3 is the statement of the appellant.

(3.) After the investigation was completed all the persons who were in the car at that time including the appellant and Radhey Shyam, the brother of the appellant, were put up for trial before the Judicial Magistrate. He convicted all of them but in appeal the Sessions Judge, Patna, acquitted all except the appellant. It is, therefore, not necessary to refer to the defence taken by the acquitted persons. The appellant's defence was that he was not travelling in the car at the relevant moment and that he was at that time in the house of Kanhai Singh (D.W. 1) which is situate in Subjibagh Mohalla of Patna where he was arrested by the Excise Inspector at 6.00 on the morning of August 4. His defence further is that after his arrest R.R.P. Sinha, P.W 1 and other officers of the Excise Department took him in a jeep, subjected him to threats and abuses, assaulted him and eventually took his signature on a blank paper. Thus his defence is that he was falsely implicated by the Excise Inspector. In view, however, of the fact that all the courts have accepted the evidence of the prosecution witnesses which establishes the fact that the appellant was actually in the car when it was stopped by the Excise Inspector, Mr. Chari has rightly not challenged that finding. He has also not contended that the appellant's signature was taken on a blank paper by the Excise Officer. The argument he advanced, however, is that there is no legally admissible evidence on the basis of which the appellant's conviction can be sustained. The confessional statement Ex. 3 upon which reliance has been placed by the High Court as supporting the evidence of P.W. 2 Debendra Prasad Singh, P.W. 3 Paresh Nath Prasad Singh and P.W. 4 Rabindra Prasad Singh is attacked as being inadmissible in evidence and it is said that if this statement is put aside the evidence of the three prosecution witnesses on whom reliance has been placed by the High Court is insufficient in law to sustain the conviction of the appellant under S. 47(a) of the Excise Act.