SHERA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard Perused the order dated 8.6.94, whereby learned Munsif and Judicial Magistrate, Jhind allowed the application filed by the AddI. Public Prosecutor under Section 311 Cr. P.C. and ordered that the true copy of arrest memo dated 11.7.83, by which the petitioner was alleged to have been arrested under Section 41 read with Section 109 Cr. P.C. be taken on record He further held that it was a true copy of arrest memo, genuineness thereof could not be disputed. He further held that the petitioner shall be free to send for the original arrest memo and cross-examine PW 9 and Investigating Officer Rarneshwarlal.

(2.) The petitioner is facing trial for the offence under Section 419 of the Opium Act before the Trial Court. The alleged incident took plaoo in the year 1983. It is alleged by the prosecution that the petitioner was arrested-on 11.7.83 under Section 41 read with Section 109 Cr. P.C. and that in pursuance to his information given under Section 27 of Evidence Act, the contraband opium was recovered. However no arrest memo was filed alongwith challan papers. When Rameshwarlal, Investigating Officer was being examined in the Trial Court, the AddI. Public Prosecutor submittedthe carbon copy of arrest memo dated 11.7.83 and prayed that the said document be taken on record. On the same day the Investigating Officer put his signature on that document certifying that to be a true copy. Apparently, the said copy of the arrest memo is secondary evidence, which cannot be taken on record until and unless it is shown that original arrest memo has been lost or the same is not traceable and necessary permission of the Court to admit the said document as secondary evidence is sought. Moreover, it is the duty of the prosecution to prove that the petitioner was arrested on 11.7.83, that he had volunteered information under Section 27 of the Act and that in pursuance thereof he got recovered contraband opium. The learned Magistrate has, therefore, committed grave error in taking carbon copy of arrest memo on record without complying with the provisions of Sections 63 and 65 of Evidence Act and in holding that the genuineness of the said cannot be doubted.

(3.) In these circumstances the impugned order tantamount to abuse process of the Court and to secure the ends of justice, it is necessary to quash the same.