STATE OF ORISSA Vs. CHANDAN TOLA

JUDGEMENT

(1.) THE State of Orissa have filed this against an order dated 19 -3 -1960 passed by Shri P.K. Swain, Magistrate, First Class, Sonepur acquitting the Respondent of a charge under Section 9 of the Opium Act and Section 55 of the Bihar and Orissa Excise Act.

(2.) THE prosecution case is that on 13 -9 -1959 the accused. Respondent was found to be in possession of Re -/4/ - annas weight of Opium and some non -duty paid Ganja weighing about 1 1/2 to as when p.w. 1 the Sub -Inspector of Excise after the alleged recovery of the aforesaid Opium and Ganja from the house of the Respondent submitted a prosecution report under Section 9 (a) of the Opium Act and Section 55 of the Bihar and Orissa Excise Act. The house of the Respondent was searched in the presence of Lalmohan Bhoi and Nitya Bhoi who as search witnesses were not only present at the time of the search and recovery but also signed the search list (Ext. 1). The other two witnesses who were present at the time of the search are the A.S.I. (p.w. 2) who accompanied p.w. 1 to assist him in the search and also p.w. 5, a Sub -Inspector of Police, who accompanied the search party. The only two witnesses unconcerned with the search party and who were said to be present at the time of the search and attested the search list are Nitya Bhoi (p.w. 3) of mouza Abhidar, a village other than the village where the search took place and Lal Bebari Bhoi (p.w. 4), the Gountia of the village Champalli, the village of the Respondent. These two witnesses (p.ws. 3 and 4) who are said to be independent witness and present at the time of the search have, however, definitely deposed against the prosecution and have been declared hostile. Nitya Bhoi has stated that his village is a mile off from the village Champalli and, while he was returning from market he was called by p.w. 1 to sign a paper which he signed. He has also stated that no personal search by p.w. 1 was made before him nor had he gone inside the house at the time of the search nor had he seen the recovery of opium and Ganja from the house. When the Stock containing the contraband goods (M.O.I.) was shown to him he denied to have seen them before. So, evidently he is not a witness to the search nor was the recovery made in his presence. Similar is the evidence of Lal Behari Bhoi (p.w. 4) who is the Gountia of the village and would naturally be a respectable person of the locality. He denied to have seen any recovery of the excisable articles or opium from the house of the accused -Respondent, but, he simply signed Ext. 1 at the request of the Sub -Inspector of Police. So, it is clear from the evidence of these two witnesses that they were not present at the time of search nor was the recovery made in their presence.

(3.) IT was brought to my notice by the learned Government Advocate at the time of hearing of this appeal that the judgment of the learned Magistrate is not in accordance with the requirements as laid down under Section 367, Code of Criminal Procedure. The Magistrate's judgment is very cryptic without any discussion of the evidence of witnesses or the points for determination and from such a judgment it would be difficult to find out what exactly were the considerations that weighed with the learned Magistrate in arriving at a decision. Even, in a case of benefit of doubt, a Magistrate has to write out a well considered judgment and should give his reasons as to why he should either accept or reject any oral or documentary evidence placed on behalf of the prosecution or defence mere summary disposal of the case and merely giving benefit of doubt are not enough for the requirements of law. The final decision as to benefit of doubt should follow from a well considered finding base upon evidence, as it is always necessary to create an impression in the mind of the accused or even the complainant that the court has given its full consideration to the facts of the case before it has come to such a definite conclusions the learned Government Advocate cited a case in Arumugam Solathirayar v. Ponnalagu Pandarar in support of his contention that for every benefit of doubt that goes to the accused there must be well considered judgment to support such a finding. I do not think, this position of law candle all be disputed. A. I have observed above, the, A.I.R. 1958 Mad 127.