THE STATE Vs. BABU SINGH

JUDGEMENT

(1.) BABU Singh Respondent was tried by a Magistrate on a charge under Section 9 of the Opium Act, but was acquitted and this appeal has been filed by the State against the order of acquittal.

(2.) THE prosecution story is that on the morning of the 5th of October 1961 S. I. Dalip Singh and A. S. I. Ram Rakha Singh went to the village Bhalwan accompanied by Kirpal Singh P. W. 1 of Dhuri. In the village information was received that Babu Singh was in possession of some opium, and after sending a report to the Police Station the Sub Inspector and others joined by Gurbux Singh and Harnam Singh, Lambardar of the village, went in search of Babu Singh whom they met on the roadside coming from his field. The person of Babu Singh was searched and from one of his pockets a small tin containing 5 tolas of opium wrapped in a paper was recovered. A sample of the opium was cut off and put in a separate sealed parcel to be sent to the Chemical Examiner, who has reported that the substance was opium.

(3.) THE learned Magistrate in acquitting the accused has not discussed the evidence at all and has based the acquittal on what appears to be curious reasoning. He has said that the search was governed by the provisions of S. 103 Criminal Procedure Code, Sub -section (2) of which provides that a list is to be prepared of any articles sized in the course of a search The recovery memo in this case is Ex. P. B. and it is drafted and signed by S.I. Dalip Singh and also by the A. S. I. and the three witnesses to whom I have referred above. All that it relates is that in the presence of the witnesses mentioned below the person of Babu Singh was searched and a tin containing 5 tolas of opium recovered part of which had been placed in a separate parcel. The learned Magistrate was of the opinion that this recovery memo was inadmissible in evidence because it was signed by the witnesses and thus contravened the provisions of section l62 Code of Criminal Procedure which forbids the police to obtain the signature of any person on his statement recorded in an investigation presumably under Section 161. He further went on to say that since the list was required by Section 103(2) to be in writing, oral evidence regarding its contents was barred by Section 91 of the Evidence Act.