ISMAIL AHMED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant was convicted under sec. 135 of the Bombay Police Act for having been in possession of a Rampuri knife. His conviction must be set aside because the police officer does not say that he found a knife in possession of the accused. According to him Panch No. 2 made a search and brought out a knife. A Panch has no authority to search a person under the law. It is only a police officer who can search a person under certain circumstances but he cannot delegate the authority to search to a non-police officer. He may keep the Panch present to see that he searched the accused and found a knife in possession of the accused. One Gulam Rasul says that the accused was with the police and was searched. He further says that from the pocket of the Lengha of the accused a Rampuri knife was recovered. In such cases passive voice should not be used unless the sentence in passive voice is completed by the words by so and so. We do not know who searched the accused and who recovered a knife. As observed by me in my judgment in Criminal Appeal No. 695 of 1962 a passive voice should not be used in depositions unless the sentence in a passive voice is completed by using the words by so and so. There is therefore no evidence that the police officer found a knife in the possession of the accused.

(2.) There is no evidence of any witness that he saw the accused carrying a knife. The learned Government Pleader relies on the following sentence in the evidence of Chandrasing Sendhaji the police officer:-

(3.) But the witness has not stated from the right side Lengha pocket of which person a knife was recovered. Unless some witness says that I recovered a knife from the right side Lengha pocket of the accused the accused cannot be convicted. When the words by me or by so and so are not there the evidence does not necessarily be evidence of personal knowledge and may be hearsay. The police officer should have arrested the accused before searching him in order to make the search legal.