LEX/BDHC/0123/2006

Equivalent Citation: 2006 BLD 473, 58 DLR (2006) 458

BLD
IN THE SUPREME COURT OF BANGLADESH
(HIGH COURT DIVISION)

Jail Appeal No. 189 of 2005

Decided On: 18.04.2006

Rabya Khatun Vs. The State and another

Hon'ble Judges/Coram:
Surendra Kumar Sinha and Zubayer Rahman Chowdhury, JJ.

Subject: Criminal Law

Mentioned IN

Relevant Section:
CODE OF CRIMINAL PROCEDURE, 1898 - Section 103

Acts/Rules/Orders:
Arms Act, 1878 - Section 19(1), Arms Act, 1878 - Section 19(f), Arms Act, 1878 - Section 19A;
Code of Criminal Procedure, 1898 (CrPC) - Section 100; Code of Criminal Procedure, 1898
(CrPC) - Section 102; Code of Criminal Procedure, 1898 (CrPC) - Section 103; Code of Criminal
Procedure, 1898 (CrPC) - Section 103-(1), Code of Criminal Procedure, 1898 (CrPC) - Section
165; Code of Criminal Procedure, 1898 (CrPC) - Section 420; Evidence Act, 1872 - Section 114,
Evidence Act, 1872 - Section 27, Evidence Act, 1872 - Section 8, Evidence Act, 1872 - Section 91;
Penal Code, 1860 - Section 187; Special Powers Act, 1974 - Section 29

Counsels:
For Respondents/Defendant: Golam Mohammad Chowdhury, D.A.G.

Disposition:
Appeal Allowed

Citing Reference:

Discussed: 18
Mentioned: 1
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Case Note:
Narcotics Control Act, 1990(XX of 1990)

Section - 19(1)

The Court should insist on strict compliance with the requirements of section 103 and view
its non-compliance with suspicion unless failure to secure presence of respectable
witnesses or to examine them in Court is sufficiently explained. An irregularity in a would
cast a duty upon the Court to scrutinize the evidence carefully and weigh the evidence in
support of search and seizure. If an investigating officer shows recovery of certain
incriminating articles from a place in absence of witnesses and no plausible reason is
shown for not securing, then such recovery may be considered doubtful on account of
violation of S. 103. If the search and seizure are made in compliance of the provisions of
section 103 of the Code, and if the attesting seizure list witnesses have testified their
signatures in the seizure list, a conviction can be given relying upon the prosecuting
officers even if the attesting seizure list witnesses have not corroborated the seizure of the
goods in terms of the prosecution case

JUDGMENT

Surendra Kumar Sinha, J.

1. Convict Rabiya Khatun preferred this appeal under Section 420 of the Code of Criminal
Procedure, briefly, the Code, from the judgment and Order of conviction dated 15.1.2005 of the
Metropolitan Additional Sessions Judge, 4th Court, Dhaka in Metropolitan Sessions Case No. 411
of 2003. The learned Metropolitan Additional Sessions Judge convicted the appellant under item
No. 1 (kha) of the Table of Section 19(1) of the Narcotics Control Act, 1990 briefly, the Act of 1990,
and sentenced her with imprisonment for life with a fine of Tk. 20,000/-, in default, to suffer,
rigorous imprisonment for 3 months more. Shafiullah Patwari (P.W. 1), an inspector of the
Narcotizes Control Department narrated the prosecution case as follows: Acting on a tip-off, P.W.
1, along with forces, both from his department and the police, gheraoed the thatched hut of the
appellant, which was situated in a slum known as "Janu's slum' on 8th August 2001 at about 7
p.m. and seized 5(five) packets of heroin. A seizure list was prepared in presence of local
witnesses. Thereafter he sent samples to the chemical analyst for examination and the chemical
analyst reported that the substance contained heroin.

2. After receipt of the case record for trial, the learned Metropolitan Additional sessions Judge
framed charge against the appellant under item No. 1 (kha) of the Table of Section 19(1) of the Act
1990, to which she pleaded not guilty and claimed to be tried.

3. Prosecution in support of its case has examined 3 witnesses including the informant, who is the

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investigating officer as well. Md. Abu Jafor (P.W. 2) and Nasirullah Bhuiyan (P.W. 3) are members
of the raiding party.

4. P.W. 1 stated that the raiding party was formed with 16 personnel of his department and 6
police personnel, and that he seized 5 packets of heroin from the hut of Rabiya Khatun. He denied
the defence suggestion that he investigated the case perfunctorily or that he submitted a report on
suppression of the real incident by omitting the names of the real offenders. He however admitted
that he visited the place of occurrence for the first time 18th August, 2001 although the alleged
incident took place on 8th August, 2001. This statement speaks volume as to his sincerity to
unfold the real offenders or accomplices. He visited the place of occurrence after 10 days of the
alleged recovery, although the Law requires that the witnesses should be examined and their
statements, if necessary, be recorded in relation to a fact which is so fresh in the mind of' the
narrator that he may be assumed to be speaking from recollection along, undiverted by any
personal motive, or in the alternative, they should be speaking before the authority, i.e. the
conditions should be such as import proper legal sanctions in case there should be variation from
the truth.

5. P.W. 2 stated that the seized heroin was found in the right hand of Rabia Khatun in a black
polythene bag. P.W. 3 corroborated the testimony of P.W. 2. These two witnesses stated that they
recovered 500 grams of heroin in 5 packets of 100 grams each. On the other hand, P.W. 1 did not
mention the quantity of heroin recovered from the possession of the appellant. The specific
defence plea is that no heroin has been recovered from the exclusive possession of the appellant
and that the officials of the Narcotics Control Department have falsely implicated the appellant by
omitting the real offenders, Although the learned Metropolitan Additional Sessions Judge noticed
that the prosecution did not examine the seizure list witnesses and also did not produce the
alamats in Court, he convicted the appellant relying on the decision in Abdur Razzaque Talukder
Vs. The State. : LEX/BDHC/0037/1998 : 51 DLR 83, wherein it has been held that if the evidence
of the prosecuting agency are found reliable, non-examination of seizure list witnesses would not
stand in the way of convicting an accused.

6. We have noticed inherent neglect and laches on the part of the prosecuting agency in
conducting the case from the very beginning of seizure of the heroin up to the trial stage, as if,
they were performing routine works. The prosecution neither examined the police personnel who
were present at the time of raid nor did it examine the seizure list, witnesses without giving any
explanation thereof. It has failed to produce samples of the heroin seized. These heroin are not
produced in our country and they are being smuggled from abroad. It is being used by our younger
generation mainly due to frustration from unemployment, economic hardship, family troubles,
misguiding by the friends. Once a person is addicted to this narcotic drug, he loses his resistance
power and his body and mind are weakened day by day, and ultimately, he cannot lead a normal
life. To save our future generation from the addiction of narcotic drug, the Act of 1990 was
promulgated providing stringent provisions for the production, consumption, transportation,
possession, sale, purchase, control and Regulation of operations of narcotic drugs, and to provide

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for forfeiture of property, vehicle etc derived from, or used in illegal traffic in narcotic and for
matters connected therewith, to avoid abuse of powers by the empowered officers, in course of
arrest, search and detention of any person under the Act, certain safeguards as to conviction or
Fine or both that may be imposed against them in appropriate cases have been-provided therein.
A harsh sentence of capital punishment has been provided for commission of certain offences and
the purpose for providing such stringent measure is for the well being of the society. Obviously,
the very purpose of promulgating this Law will be frustrated, if the prosecuting agencies are not
sincere and honest in the discharge of their responsibilities and take prompt steps not only to
unveil the drug traffickers, but also to ensure their punishments before the Court of Law by
collecting reliable evidence against them. We are perturbed and dissatisfied with the manner in
which this case has been conducted by the prosecuting agency, for which, they deserve to be
reprimanded and accordingly, they are reprimanded.

7. As we find inherent loopholes on the part of the prosecuting agency in conducting the case,
inconsideration of the gravity of the offence, we have asked the learned Deputy Attorney General
to address this Court to clarify whether or not a conviction can legally be given to an offender from
whose possession some substance, which are said be contraband under the prevailing laws has
allegedly been recovered without the attesting seizure list witnesses being examined. The learned
Deputy Attorney General submits that a conviction can be given to an offender, if the prosecuting
agency proves the seizure of the contraband goods beyond doubt, even if the prosecution has
failed to examine the attesting seizure list witnesses. According to the learned Deputy Attorney
General, for possession of contraband Article, a Court can convict a person on the basis of the
evidence adduced by the prosecuting agency, even if the prosecution withholds the attesting
seizure list witnesses. He, however, frankly concedes that the prosecution should have produced
the seizure list witnesses in Court to prove the seizure of the articles from the possession of the
offender.

8. The learned Additional Sessions Judge has misread the reported case of Abdur Rahman
Talukder mentioned above and based his decision relying upon the same. In that case the
prosecution examined two seizure list witnesses, where one witness corroborated the
prosecution case of seizure in his presence. This Court upon consideration of the evidence on
record, came to a finding that sometimes the local witnesses did not depose against the accused,
that sometimes they were reluctant to depose in support of the prosecution case and that under
such circumstances, if the evidence of prosecuting agency were found reliable, a conviction could
be given relying upon their testimony.

9. This question arises frequently before the trial Courts. Recently, we have come across a good
number of cases of similar nature decided by this Court, as well be discussed later on, where the
accused persons have been acquitted despite the fact that the prosecution has examined the
attesting seizure list witnesses, but that they have not supported the prosecution case of recovery
of contraband goods in terms of the prosecution case. In some cases, this Court upheld the
convictions without the attesting seizure list witnesses being examined. The Courts below or

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Tribunals are rather confused relying on those decisions of this Court and those of the Appellate
Divisions, and interpret them differently. In the premises, we find that this Court has delivered
conflicting judgments on similar nature of facts. We are of the view that there should be uniformity
in the decisions of this Court on this point of Law, since the Law declared by this Court is binding
on all Courts subordinate to it. Accordingly, we deem it necessary to decide the point in the light of
the decisions of the superior Courts.

10. Under the prevailing laws, for violation of offences prescribed in Section 9, 20, 21, 22, of the
Act of 1990, an offender may be prosecuted under the Act of 1990, as well as, under the Special
Powers Act 1974, briefly, the Act of 1974, and the offenders are being tried accordingly. Though
different penalties are provided under the aforesaid statutes for commission of the same offence
the procedures provided in the Code of Criminal Procedure are followed for trial of those offences
and for proving the cases, the Rules of evidence under the Evidence Act are followed in those
cases.

11. For appreciating the questions involved, we would like to extract the relevant provisions of the
Narcotics Control Act 1990 and the Special Powers Act, 1974. Section 4 of the Act of 1990 deals
with the Constitution of the National Narcotics Control Board and Section 5 empowers the Board
to formulate Rules and to implement them for preventing and combating abuse of illegal drug
trafficking, and also to formulate Rules for manufacturing, supplying, using and controlling them,
and to make awareness among the people about the harm to be cause by the use of narcotic
drugs. Section 9 of the Act prohibits cultivation, production, processing, conveying, transporting,
importing, exporting, supplying, purchasing, selling, keeping in possession and using of all types of
narcotic drugs other than alcohol, without any permit or license. Section 10 of the Act prohibits to
set up distillery or brewery or to manufacture, process, possess, transport, sell, buy or consume
alcohol without license or permit or illegal trafficking in narcotic drugs. Section 11 deals with
granting license or permit. Sections 19, 20, 21, 22 and 23 deal with penalties for contravention of
Sections 9. 10. 13 in relation to opium, codeine cocaine, opium poppy, cannabis, narcotic drug,
alcohol and prescribe for deterrent punishments for possession of certain narcotic drugs as
mentioned in clauses 1 (ka), 2(kha), 3(kha) and 4(kha) of the Table of Section 19(1). Section 36 of
the Act empowers the Director General or an officer authorized by him an Inspector of Police or a
person above his rank, a Customs Inspector or a person above his rank, an inferior Officer of the
Bangladesh Rifles or above his rank, to enter into and search in the manner prescribed
thereunder between sunrise and sunset, and can detain, search any person, place or building and
seize contraband goods, deeds etc. if he has reason to believe that an offence has been
committed at any place, is being committed or about to be committed under any of the provisions
of the Act from personal knowledge or information taken down in writing. He can also arrest any
person if he believes that such person has committed an offence under the Act. Under Section 37
, such officers are competent to direct examination of any person on X-ray or his urine etc. if such
officers have reason to believe that such person has kept concealed any narcotic drugs inside his
body. If any person refuses to comply with the direction, such officer may compel him to do so by
using force. Section 39 deals with the powers of the Director General and other officers as may be

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authorized by the Government to investigate into the offences under the Act.

12. Under the Act of 1974 a Special Tribunal may take cognizance of an offence triable under the
said Act on a report in writing made by a police officer not below the rank of Sub-Inspector.
Section 29 of Act of 1974 provides that the provisions of the Code so far only as they are not
inconsistent with the provisions of the Act shall apply. On the other hand, under the Act of 1990,
as mentioned above, no police officer below the rank of an Inspector has power to arrest any
person or has any power to search and seize narcotic drug from any person or place. Section 42
of the Act of 1990 provides that the provisions of the Code, in so far they are not inconsistent with
the provisions of this Act, shall apply to all warrants issued and arrests, searches and seizures
made under the Act. Suffice it to say that the Narcoties Control Act, 1990 or Special Powers Act
1974 are not complete Codes relating to search, seizure or arrest of the offenders for violation of
the offences prescribed in those Acts. In the Act of 1990, though there are provisions relating to
search, seizure and arrest, the provisions of the Code have been made applicable, in so far they
are not inconsistent with the provisions of the Act to all warrants issued and arrests, searches and
seizures made in pursuance thereof.

13. This sub-Section provides that where an enactment provides a special procedure for some
matters only, its provisions must be applied in regard to those matters and the provisions of the
Code will apply for the matters on which the enactment is silent. But where no such procedure has
been provided for, the normal procedure in the Code shall be applicable. Section 5(2) is not
intended to be all embracing and exhaustive of the Code. For search and seizure of any
contraband goods, Sections 103 has been included in Chapter VII of the Code with the object to
prevent possible chicanery and unfair dealings on the part of the officers entrusted with search
and seizure, which reads:

S. 103-(1) Before making a search under this Chapter, the officer or other persons about to make
it shall call upon two or more respectable inhabitants of the locality in which the place to be
searched is situate to attend and witness the search and may issue and Order in writing to them
or any of them so to do.

(2) The search shall be made in their presence and a list of all things seized in the course of such
search and of the places in which they are respectively found shall be prepared by such officer or
other person and signed by such witnesses; but no person witnessing a search under this Section
shall be required to attend the Court as a witness of the search unless specially summoned by it.

(3) The occupant of the place searched, or some person in his behalf, shall, in every instance be
permitted to attend during the search, and a copy of the list prepared under this Section, signed
by the said witnesses, shall be delivered to such occupant or person at his request.

(4) When any person is searched under Section 102, sub-Section (3), a list of all things taken
possession of shall be prepared, and a copy thereof shall be delivered to such person at his

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request.

(5) Any persons who without reasonable cause, refuses or neglects to attend and witness a
search under this Section, when called upon to do so by an Order in writing delivered of tendered
to him, shall be deemed to have committed an offence under Section 187 of the Penal Code.

14. This provision provides that when a search is made under Chapter VII, the officers making the
search shall prepare a list of all things seized in the course of such search and the places in
which they are found in presence of at least two 'respectable inhabitants' of the locality in which
the place searched is situated. The object of enactment of this Section is to ensure fair dealing on
the part of the officer-making search and the purposes is to ensure that the testimony given in
Court with regard to the result of a search should not depend upon the police officer alone, but
also upon the evidence of independent witnesses of the locality and all possibility of false
implication in the case of search be minimized by the availability of the independent persons. The
other object of this provision is to avoid harassment, concoction and manipulation at the time of
search and seizure of the goods. This has been made to ensure a sense of confidence and
security among the public. Whether a particular witness is respectable or independent cannot
necessarily be judged from his status, but can be inferred from his conduct. If no public witness
has witnessed the raids or attested the recoveries, there has been a clear violation of the provision
of Law and the so-called recoveries cannot be used against the accused.

15. Section 165 of the Code enjoins that whenever an officer-in-charge of a police station or a
police officer making an investigation has reasonable grounds for believing that anything
necessary for the purposes of an investigation into any offence which he is authorized to
investigate may be found in any place within the limits of the police station of which he is in
charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained
without undue delay, such officer after recording in writing the grounds of his belief and specifying
in such writing, may proceed to search or cause search to be made. The provisions contained in
Sections 102 and 103 shall apply to a search in view of sub-Section (4) of Section 165 of the
Code. It would seem to follow that the fact of certain things having been found from a certain place
on search is a "matter required by Law to be reduced to the form of a document" and that other
evidence in proof of this matter would, by reason of Section 91 of the evidence Act, be
inadmissible, where no search list: has been made, or where the search list having been
prepared, is not produced at the trial, and the things found on search are sought to be proved by
oral evidence to have been so found. Of course, mere absence of witnesses at the place of
search does not make the search, as a matter of Law, incapable of proof, though it may weaken
and may sometimes destroy acceptance of evidence as to the finding of the articles.

16. Let us now consider some decisions of this Court and other Courts in the light of the provisions
as discussed above. In Md. Moklesur Rahman and another Vs. The State, 14 BLD 127, the
convict was acquitted of the charge under Section 35B of Act of 1974. In that case, the
prosecution examined two seizure list witnesses, but they did not support the prosecution story

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and stared that they put their signatures on a blank paper. The prosecution did not declare them
hostile and allowed their evidence to remain uncontroverted. It has been observed that search
and seizure of incriminating articles without strictly following the provisions of Sections 102 and
103 of the Code cannot be held to be legal.

17. In the case of Habibur alias Jane Alam Vs. The state, 15 BLD 129, the convict was acquitted
of the charge under Sections 19A and 19(1) of the Arms Act. In that case, the two attesting
seizure list witnesses proved their signatures in the seizure list, but they did not support the
prosecution story of seizure of arms in their presence. It has been observed that the provisions
relating to search and seizure provided in S. 103 of the Code are mandatory, and any search
and seizure without strictly complying with the aforesaid provisions of Law must be held illegal
and that the police personnel conducting the search and seizure are interested witnesses and
corroboration of their evidence by impartial witnesses is necessary.

18. In Musa Mia Vs. The State, 5 BLC 703, the convict was acquitted of the charge under item no
7(kah) of the Table of Section 19(1) of Act of 1990. In that case some 'Ganja' were said to have
been recovered from the possession of the convict and the two seizure list witnesses had
identified their signatures in the seizure list, but they did not support the seizure of "Ganja" in their
presence. It has been observed:

The provisions of Section 103 of the Code of Criminal Procedure had not been complied with in
this case inasmuch as there is no iota of evidence on record to show that the informant entered
into the place of occurrence hut in presence of any respectable local witness.
19. In Md. Jainal Abedin Vs. The State, 11 BLD 70, some foreign clothes were said to have been
recovered from the possession of Md. Jainal Abedin by the BDR personnel. Though the
prosecution examined two seizure list witnesses, they did not support the prosecution version of
recovery of goods in their presence and stated that they put their signatures at the BDR camp on a
paper. Convict Jainal Abedin was acquitted of the charge mainly on the reasoning that there was
no independent corroboration of the evidence of P.W. 1, the BDR personnel, by any other reliable
evidence, inasmuch as, the two seizure list witnesses have not supported the prosecution version.

20. In Nurul Islam Vs. The State, 8 BLD 106, the convict was acquitted of the charge under
Section 19A of the Arms Act mainly on the reasonings that the seizure list witnesses did not
corroborate the seizure of arms in terms of the prosecution case. It has been observed:

The object of the provisions of Section 103 Cr.P.C. is to ensure conducting of search in an
impartial and fair manner and also to ensure that there is no 'planting' of incriminating articles by
the police or by any other person.
21. In Sirajul Islam (Md.) Vs. The state, : LEX/BDHC/0146/1996 : 48DLR 301, it has been
observed:

Police witnesses are the partisan or interested witnesses in the sense that they are concerned in

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 the success of the raid or search. Their evidence, therefore, must be tested in the same way as
the evidence of the other interested witnesses are tested by the application of diverse
contradictions, which must vary from case to case.
22. In Mati Mia Vs. The State. : LEX/BDHC/0109/1990 : 44 DLR 554, the convict was tried in
absentia and convicted. On appeal, he was acquitted of the charge under Section 19A of the Arms
Act on the reasoning that a conviction could not be given on the basis of uncorroborated testimony
of the informant who is a "police officer and is vitally interested in the result of the case".

23. In panchu alais Paigam Ali Vs. The State, 26 DLR 297, some ammunition were allegedly
recovered from the convicts possession and the prosecution examined two attesting seizure list
witnesses who belonged to a different village. The convict was acquitted of the charge, relying
upon the views taken by the Bombay High Court and Lahore High Court, in which cases, their
Lordships observed that in a case where the "search witnesses do not satisfy the provisions of S.
103, the whole proceedings should be quashed."

24. In Moshfiqul Islam @ Balu Vs. The state, : LEX/BDHC/0134/2000 : 52 DLR 593, though
accused Moshfiqul Islam made a confession before the police and produced a revolver and two
rounds of ammunition, he was acquitted of the charge on the reasonings that the two attesting
seizure list witnesses did not support the prosecution case and that the witnesses did not support
the prosecution case and that the prosecution had failed prove the recovery of arms from his
possession beyond shadow of doubt.

25. In Abul Hashem Master Vs. The State, : LEX/BDHC/0020/1991 : 44DLR 159, a pipe gun was
allegedly produced by the accused to the police which was seized in presence of two local
witnesses, and the said attesting seizure list witnesses had corroborated the seizure of arm. The
convict was acquitted of the charge on giving him the benefit of doubt. It was however observed
that if the arms were produced by the accused "fulfillment of the provision of Section 103 Cr.P.C.
was not also required, because the pipe gun was not recovered by the policed personnel on
search, but it was produced by the accused-appellant himself without requirement for search".
The view was taken relying on a single Bench decision in Kochi @ Jishan & others Vs. The Stated
8 BLD 412.

26. In Abdul Razzak Talukder Vs. The State, : LEX/BDHC/0037/1998 : 51 DLR 83, the conviction
of the appellant under Sections 19A and 19(f) was maintained on the reasonings that a conviction
can be given relying upon the evidence of police if their evidence is found believable, even if the
attesting seizure list witnesses have not corroborated the prosecution case. In that case, the arms
were recovered from a place as point out by the accused.

27. In Bashar Shaikh Vs. The State, : LEX/BDHC/0070/1996 : 51 DLR 252, the conviction of the
convict under Sections 19A and 19(f) of the Arms Act was categories of cases are in respect of
recovery of contraband goods by the police from the place as pointed by the accused. In those
cases, this Court observed that fulfillment of the provision of Section 103 of the Code by the police

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personnel is not required since the goods were produced by the accused himself/herself and that
a conviction could be given relying on the solitary statement of the police personnel who seized
the goods.

28. In the other category of cases, it has been observed that a conviction may be given relying
upon the evidence of the prosecuting agency if their evidence are found reliable and if the
attesting seizure list witnesses admit their signatures in the seizure list, even though they do not
corroborate the seizure of the goods in terms of the prosecution version. In such cases, it was
also observed that if the prosecution had proved that the accused person was in conscious or
exclusive possession or effective or actual control of the goods other than constructive
possession, there is no legal bar to convict the accused.

29. Suffice it to mention here that it is a fundamental Rule of evidence that unless there is some
presumption as to the existence of a fact, which is closely allied to the subject of burden of proof,
its existence must be proved to the satisfaction of the Court. The party who wishes the Court to
believe in the existence of a fact, must prove it, subject to two exceptions; (a) a fact which is
admitted by other party need not be proved, (b) facts of which the Court shall take 'judicial notice'
need not be proved. The Evidence Act divides the subject of proof into (i) Proof of facts other than
contents of document and (ii) Proof of documents including (a) proof of execution of documents
and (b) proof of existence, condition and contents of documents.

30. A confession to police officer, in so far as it is confirmed by the discovery said to be connected
with the crime of which the informant is accused, is shown to be true and, therefore, becomes
admissible under Section 27 of the Evidence Act. Such a confession is not admissible if it has not
led to the discovery of any fact. The fact deposed to as discovered must itself be relevant to the
issue; otherwise no evidence can be admitted in proof thereof. The word 'discovery' is used in the
Section, that is, in the sense of finding upon search or inquiry, of articles connected with the crime
or other material fact, the reason being that it is only this kind of 'discovery', which proves that
information in consequence of which the discovery was made, is true and not fabricated. The
statements admitted by the Section are statements preceding finding upon search and inquiry,
(Woodroffe, 9th Edition page 294). Where corroborating evidence has not proved the discovery,
how can a confessional statement be admissible in evidence?

31. In Mahbubur Rahman Khan alias Tipu Vs. State, 16BLD(Ad) 268, accused Mahbubur Rahman
was caught by the public on chase in course of committing robbery. A police officer on mobile
duty, on getting information about the incident, went to the scene and seized a firearm from his
possession in presence of the witnesses, but the seizure list witnesses were not examined in the
case. Besides the informant (P.W. 1), the prosecution examined two other witnesses, the victim
Saiful Islam (P.W. 2) and Badruddin (P.W. 4), a taxi driver who arrived at the scene immediately
after the recovery of arm. The conviction of the accused by the Tribunal was maintained by this
Court on the findings inter alia that despite issuance of processes, the seizure list witnesses did
not turn up, that it was difficult to get the seizure list witnesses who were not personally interested

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in the case and that no adverse inference could be drawn for non-examination of seizure list
witnesses. The Appellate Division, while maintaining the conviction, did not approve the views of
this Court and observed that the victim had corroborated the recovery of firearm from the
possession of the accused and that the defence did not dispute the possession of firearm by
giving 'Suggestion to any prosecution witnesses that the appellant was falsely implicated this
case" and that the disinterested witnesses "deposed on the material question of recovery of the
revolver from the possession of the, appellant". On a close scrutiny of the said reported case, we
find that the Appellate Division has not approved the views of this Court that a conviction of an
accused person for possession of contraband goods can be given relying on the evidence of the
prosecuting agency without being corroborated by other evidence or in the alternative, the
evidence of the police personnel can be the basis of conviction of an accused person for
possession of contraband goods in the absence of any other corroborating evidence, if the
accused disputes the possession of the same.

32. The Supreme Court of India had considered this point in State of Punjub Vs. Balbir Singh, :
MANU/SC/0436/1994 : AIR 1994 S.C. 1872. The case related to over the recovery of narcotic
drug under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), which is
almost akin to our Act of 1990 but the said Law is more comprehensive than our Act. In that case,
the questions which arose for consideration was whether any arrest and search of a person or
search of a place without conforming to the provisions of NDPS Act become illegal and
consequently vitiate the conviction. Section 42 of NDPS Act empowers certain officers, as in our
Act, to enter, search, seize and arrest a person for commission of offences under the Act without
warrant or authorization, and if an offence punishable under Chapter IV of the said Act has been
committed, such authorized officer may enter into and search in the manner prescribed
thereunder between sunrise and sunset, and can detain and search any person if he thinks
proper. Section 50 Thereof contains 'Conditions under which search of persons shall be
conducted" and Section 51 provides that the provisions of the Code of Criminal Procedure, 1973
to apply to warrants, arrest, searches and seizures in so far as they are not inconsistent with the
provisions of NDPS Act. The supreme Court has observed that if the official deliberately has failed
to comply with the provisions of Law, the Court will not hesitate to disbelieve the seizure and
acquit the accused person. "It thus emperges that when the police, while acting under the
provisions of Cr.P.C. as empowered therein and while exercising surveillance or investigating into
offences, had to carry out the arrests or searches, they would be acting under the provisions of
Cr.P.C. At this stage, if there is any non-compliance of the provisions of S. 100 or 165 Cr.P.C. that
by itself cannot be a ground to reject the prosecution case outright. The effect of such non-
compliance will have a bearing on the appreciation of evidence of the official witness and other
material depending upon the facts and circumstances of each case." The Supreme Court
observed "the testimony of a witness is not be doubted or discarded merely on the ground that he
happens to be an official but as a Rule of caution and depending upon the circumstances of the
case, the Courts look into independent corroboration".

33. In Sundar Singh Vs. The State of Uttar Pradesh, : MANU/SC/0118/1955 : AIR 1956 S.C. 411,

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it has been observed:

Assuming that the witnesses who actually witnessed the search were not respectable inhabitants
of the locality, that circumstance would not invalidate the search. It would only affect the weight of
the evidence in support of the search and the recovery, hence at the highest the irregularity in the
search and the recovery, in so far as the terms of S. 103 had not been fully complied with, would
not affect the labiality of the proceedings.
34. In State of Maharashtra Vs. P.K. Pathak, : MANU/SC/0240/1980 : AIR 1980 S.C. 1224, it has
been observed that 'where the smuggled articles were recovered it would neither be practical nor
reasonable to expect any person of the locality to witness the search. The fact that a witness
was approached by the police and the Customs authorities accompanied them to witness the
search, made at the instance of the accused persons, by itself would not show that he was in any
way interested or unreliable."

35. In Radha Kishan Vs. State of Uttar Pradesh, : MANU/SC/0146/1962 : AIR 1963 S.C. 822, it
has been observed:

So far as the alleged illegality is concerned, it is sufficient to say that even assuming that the
search was illegal the seizure of 'the articles is not vitiated. It may be that where the provisions of
Ss. 103 and 165, Code of Criminal Procedure are contravened the search could be resisted by
the person whose premises are sought to be searched. It may also be that because of the illegality
of the search the Court may be inclined to examine carefully the evidence regarding the seizure.
36. In Matajog Dubey Vs. H.C Bahri. : MANU/SC/0071/1955 : AIR 1956 S.C. 44, it has been
observed:

where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said
expressly inhibiting the exercise of the power or the performance of the duty by any limitations or
the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries
with it the power offering all such acts or employing such means as are reasonably necessary for
such execution.
37. The consistent view of the superior Court of India is that if the prosecuting agency have
deliberately failed to comply with the provisions of Section 103 of the Code, the Court is required
to examine the evidence of seizure carefully and if there is no other reliable evidence, it may
acquit the accused, and that the non-compliance of the provision of Law will have a bearing on the
appreciation of the evidence of the official witness.

38. Section 103 of the Code refers only to search of places and seizure of contraband Article in
course of such search and does not apply to search of persons. It provides for the right of free
ingress of a police officer into a place for the purpose of search. On the other hand, the Act of
1990 and the Arms Act, empower the authorized officer or a police officer, as the case may be, to
search a person and seize contraband Article found from such search, but no procedures have
been provided therein for seizure of those articles. In the absence of such procedure, the officer

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conducting the search is required to seize the Article by preparing a seizure list in accordance
with Section 103 of the Code. This seizure of Article even if I is produced by the accused person
by a seizure list, does not ipso facto prove that the Article has been recovered from the
possession of the said accused person unless the fact of such recovery is proved in accordance
with Law. So long as there is an attesting witness alive, capable of giving evidence, and subject to
the process of the Court, no document, which is required by Law to be attested, can be used as
evidence until such witness has been called. The fact that the attesting witnesses would prove
hostile when called does not relieve the prosecution in producing the seizure list witnesses for
proving the same. When one of the attesting witnesses is called and he resiles, it is open to the
prosecution to adduce other evidence. It is sufficient that the attesting witness is called and if he
does not recollect or denies the execution, Order evidence can prove the document.

39. Whether or not the accused himself produces in Article, or leads the police to the place where
it is lying, the Act of production, or of leading the police to, and pointing out the place where the
Article is lying is by itself relevant under Section 8 of the Evidence Act. Police Officer seizes the
contraband articles in exercise of statutory powers conferred on him under chapter XIV read with
Chapter VII of the Code. If the police officers testimony has been found believable and the Court
finds that the search and seizure have been made in accordance with Law, the court can
legitimately make a presumption that he has not acted capriciously. Illustration (e) to Section 114
of the Evidence Act is founded on the maxim "Omnia praesumuntur rite case acta" i.e. "all things
are presumed to be rightly done." This illustration provides that the Court may presume "that the
judicial and official acts have been regularly preformed." There is always strong presumption in
favor of regularity of performance of all judicial and official acts, i.e. that what ought to have been
done in connection with an official Act was in fact done. The presumption that the Act was
regularly done arises only on proof that the Act was in fact done, as the presumption is limited to
the regularity of the Act done and does not extend to the doing of the Act itself.

40. Lawson, writing with reference to American Law, in his work on presumptive evidence, has
given a brief account of various classes of presumptions and of the distinction among them, to
which, Rules 13 and 14 relate to "the regularity of officials acts" which reads thus:

13. The presumption is that one who is proved to have acted in an official capacity possessed the
necessary and proper authority.

14. The presumption is that public officers do as the Law and their duty requires them.

41. A presumption is a Rule of Law that courts shall draw a particular inference from a particular
fact or from particular evidence, unless and until the truth of such inference is disproved. We find
no reason to depart from these principles of presumptions inferred by the superior Courts of the
United States of America from the common course of natural events, human conduct and public
business and view otherwise. We are, therefore, of the view that if a person makes a confessional
statement to a police officer which led to the discovery of the Article or leads the police to the

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place where it is lying, and the police officer seizes contraband Article on compliance of
procedures contained in Section 103 of the Code, and if such officer proves to the satisfaction of
the Court the seizure of the Article and the prosecution examines the attesting seizure list
witnesses in Court, and proves their signatures in the seizure list, whether or not the attesting
seizure list witnesses support the prosecution case, the Court may infer a presumption in favour
of the prosecution that the police officer or other officer conducting the search and seizure has
acted in an official capacity, that the Act of the officer in seizing the articles has been done
regularly in discharge of his public duties and that the attesting seizure list witnesses are making
obliging statements for fear of reprisal.

42. In view of the above discussions, we find it necessary to set out our conclusions as follows:

a) The Court should insist on strict compliance with the requirements of Section 103 and view its
non-compliance with suspicion unless failure to secure presence of respectable witnesses or to
examine them in Court is sufficiently explained.

b) Where no reasonable explanation is furnished, the Courts are bound to infer adverse
presumption against the prosecution.

c) An irregularity in a search and seizure would cast a duty upon the Court to scrutinize the
evidence carefully and weigh the evidence in support of search and seizure.

d) If no independent witness is available in the locality, the officer conducting search and seizure
shall explain it properly and the seizure can be made in presence of persons from a place other
than the locality, but if it is a populated locality, a doubt would be cast on the whole transaction.

e) If an investigating officer shows recovery of certain incriminating articles from a place in

absence of witnesses and no plausible reason is shown for not securing respectable persons
witnesses, then such recovery may be considered doubtful on account of violation of S. 103.

f) Where despite the raid having been planned well in advance, no explanation was furnished by
the prosecution for not associating public witnesses available at the time of recovery, such
recovery would be considered as doubtful.

g) If the search and seizure are made in compliance of the provisions of Section 103 of the Code,
and if the attesting seizure list witnesses have testified their signatures in the seizure list, a
conviction can be given relying upon the prosecuting officers even if the attesting seizure list
witnesses have not corroborated the seizure of the goods in terms of the prosecution case.

h) The examination of the seizure list witnesses may be ignored and an accused person may be
convicted without the attesting seizure list witnesses being examined, if the accused pleads guilty
to the charge or that the accused has not challenged the recovery of the contraband articles by

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cross-examining the prosecuting police officer or the officer conducting the search and seizure.

43. These guidelines are in conformity with the views taken in the cases of Abdul Razzak
Talukder, Bashar Shaikh, Mahbubur Rahman Khan alias Tipu, Balbir Singh, Sundar P.K. Pathak,
Radha Kishan and Matajog Dubey. In view of the statements of Law as discussed above, and the
decisions of this Court, the Appellate Division and the Supreme Court of India, we are left with no
option other than to observe that the other decisions of this Division as mentioned above are per-
incurium.

44. The learned Metropolitan Additional Session Judge has failed to appreciate the decision in the
case of Abdur Razzaque Talukder. In that reported case, the prosecution has produced 2(two)
seizure list witnesses Shahjahan Chowkider (P.W. 2) and Abul Kalam Mridha (P.W. 3), and
though they have not corroborated the prosecution story of recovery of the arm in their presence,
they have admitted their signatures in the seizure list. In the facts of the given case, the High
Court Division came to the finding that if the police officer conducting seizure was found
believable, a conviction could be given.

45. In the instant case, the prosecution had not only withheld the seizure list witnesses, but also
failed to give any explanation about their non-examination as well. The defence having challenged
the seizure of heroin in question from the possession of the appellant, the seizure of heroin, as
stated by the prosecuting officer, from the possession of the appellant remains doubtful. A
conviction of an accused person cannot be given unless the prosecution proves the case beyond
shadow of doubt. The presumption of innocence of the accused remains in her favour until the
prosecution discharges the onus of proving that the contraband articles have been recovered from
her possession. Even in the lips of these three prosecution witnesses, we find inconsistency about
the manner of seizure and the quantity of heroin allegedly recovered from the possession of the
appellant. P.W. 1 did not mention the quantity of heroin from the possession of the appellant, how
it could give suggestion to P.Ws. 2 and 3 that the quantity of the heroin would be below 500
grams? The learned Metropolitan Additional Session Judge has totally failed to comprehend the
defence plea. In that view of the matter, the finding of the learned Metropolitan Additional Sessions
Judge that the quantity of the heroin is 500 grams in based upon no legal evidence on record. We
find that the prosecution has failed to prove the recovery of 500 grams of heroin from the exclusive
possession of the appellant and therefore, she is entitled to get the benefit of doubt. We find merit
in this appeal. In the result the appeal is allowed. The conviction of the appellant is set aside. The
appellant is found not guilty of the charge and she be set at liberty at once, if not wanted in
connection with any other case.

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