STATE Vs. SANT PRAKASH

JUDGEMENT

(1.) STATE of U. P, has preferred this appeal against the judgment and order dated April 11, 1970, passed by the Additional Sessions Judge, II, Etawah, in Criminal Sessions Trial No. 164 of 1968. The respondents Sant prakash, Prem Saran Munna Lai, Shiv Ram, Shri Ram and Duryodhan were committed to the Court of Session to stand their trial for the offences under Sections 395 and 353 IPC. The trial Judge held that the prosecution failed to establish its case against the respondents and acquitted them of the charges levelled against them. The present appeal came up for hearing before a Division Bench of this Court, It was contended for the respondents before the Division Bench that the officers acting under the authority of law (Defence of India Rules and Gold Control Order) did not comply with the provisions of Sections 103 and 165 Criminal P. C. 1898; the search and seizure, therefore, conducted by these officers were vitiated and were illegal and the respondents had a right to resist the same, The order of acquittal, therefore, was rightly passed by the learned Sessions Judge. Various authorities were cited in support of and against the contentions of the respondents. In these circumstances a reference was made by the order dated 23rd August, 1974, passed by the Division Bench that the case be laid before a larger Bench for decision of the questions of fact and law involved in the case. By the order of the Hon'ble the Chief Justice the case has been listed before us. We are therefore, called upon not only to answer the points on reference but also to decide the entire case,

(2.) BRIEFLY stated the prosecution case was that Shri Ram respondent, a certified Gold Smith under the Gold Control Order was carrying on the business of die cutting in his shop situate in mohalla Humesganj in the city of Etawah. As a certified gold smith Shri Ram was required to maintain register under the Gold Control Order. Shri G. U. Nemani P. W. 1 was the Preventive and Intelligence Officer of the Central Excise Department posted at Etawah during the relevant period and on 7th January, 1968, he was on the usual checking duty. At about 4. 30 p. m. when he had concluded the checking of another gold smith named Murari Lai he received Information that Shri Ram was preparing gold ornaments at his shop. After the receipt of this information P. W. 1 G. U. Nemani along with P. W. 4 K. K. Misra (who was along with P, W. 1 in the checking) reached the place of Shri Ram respondent situate on the first floor of the house in mohalla Humeshganj. At the time and place Shri Ram was present and he was busy in cutting the ornaments. Shiva Ram, Raj Bahadur and a boy, not named, were also present there P. W. 1 took the register of the shop of Shri Ram and after checking the entries therein he found that the ornaments in possession of Shri Ram were not entered in the register. He took into his possession seven items of ornaments from Shri Ram. He also searched the Jhola of Shiva Ram and took two ornaments from the Jhola as well. Me took the register in his possession and dictated a memo, of the recoveries to P. W. 4 K. K. Misra. This memo was signed by Shri Ram and Raj Bahadur as well. He took a tin box and kept all the ornaments that were taken from Shri Ram and Shiva Ram. The tin box was wrapped in a cloth and was being sealed at that moment. Respondents Duryodhan, Sant Prakash, Munna Lai, Prem Saran and some other unknown persons arrived there. Sant Prakash exhorted and asked Shiva Ram and Shri Ram not to allow P. Ws. 1 and 4 to take away the gold and they would see to it later one On this exhortation Shri Ram, Shiva Ram, Sant Prakash Duryodhan and their companions snatched the register and the tin box containing the ornaments and fled away from that place. They were chased by these two witnesses. In this pursuit Sant Prakash and Duryodhan respondents could be apprehended with help of one Constable Kanhai Singh but the other respondents succeeded in taking away the register and the box containing the ornaments. P. W. 1 got the first information report scribed by P. W. 4 and lodged the same at P. S, Kotwali, A case under Sections 395 and 353 IPC was registred at P. S. Kotwali. No action under the Gold Control Order was taken against the respondents. After investigation charge-sheet was submitted against all the respondents for the offences as aforesaid and after inquiry the case was committed to the court of session where the respondents were tried for the charges. All the respondents have been acquitted by the Sessions Judge.

(3.) THE respondents did not plead guilty to the charges. Sant prakash respondent pleaded that he was implicated in the case on account of enmity with P. W. . 1. His case was that he was the Secretary of the Zila Swarnakar Sangh. On January 7, 1968 he and Duryodhan both were present in the office of the Sangh situate near the shop of Shri Ram. P. W. 1 Nemani came there and he wanted them to sign some papers and on their refusal, both of them were taken to Kotwali and lodged there. The plea of respondent Duryodhan was identical with that of Sant Prakash. He has tried to explain away the enmity. According to him he was arranging a demonstration against Nemani which he stated as observation of 'black Any'. Prem Saran, Munna Lai pleaded that they were the active workers of the Sangh and were roped in the case on that account, Shiva Ram, besides denying the charge, pleaded that he was not present at the spot. Respondent Shri Ram admitted that he was a certified gold-smith under the Gold Control Order and was responsible to maintain a register and make entries in that register as provided by law. According to him all those ornaments which were said to have been recovered were entered in the register, but P. W. 1 did not check them from the register but prepared the list of ornaments or the memo from the register itself. He has suggested interpolation in Ex. Ka. 1 the recovery memo. According to him P. W. 1 wanted to confiscate the gold and on his protest there was verbal altercation and the P. W. 1 left the place murmuring and in rage and falsely implicated the respondents including him in this case.