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The Indian Penal Code
Section 103 in The Indian Penal Code
Section 165 in The Indian Penal Code
Section 98 in The Indian Penal Code
Section 342 in The Indian Penal Code

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Delhi High Court
Peershotam Dass vs The State on 28 November, 1973
Equivalent citations: 1975 CriLJ 309
Author: P S Safeer
Bench: P S Safeer



JUDGMENT
 

Pritam Singh Safeer, J.

1. The appellant was tried for the offences covered by Sections 259 and 263-A of the Indian Penal Code by Shri D. C. Aggarwal, Addl. Session Judge, Delhi who found him guilty and convicted him under both the provisions. For the offence covered by Section 259 the appellant was sentenced to rigorous Imprisonment for one year and a fine of Rs. 500/-, in default of payment whereof he was to further undergo rigorous imprisonment for four months and for the offence under Section 263-A of the Indian Penal Code he was sentenced to pay a fine of Bs. 200/-. in default whereof he was to undergo further rigorous imprisonment for three months.

2. According to the prosecution P.W. 13 Sadhu Ram an Inspector of Police in the Crime Branch received information on the 27th of March, 1970 from one Babu Ram Sharma which was reduced to the statement Ex. P.W. 13/A in which disclosure was that forged postcards were being produced and used. In order to discover the crime P.W. 13 started searches.

2-A. In the first Instance he was led to the premises of M/s. Baldev Raj and Co., in Gali Arya Samaj. Naya Bans, Delhi. According to P.W. 13, 22 postcards were delivered by the firm Baldev Raj and Co. to him. The testimony of P.W. 4 and P.W. 11, which will be discussed later on, was to the effect that the said 22 postcards were recovered and taken into possession vide memo Ex. P.W. 3/A. Those postcards were identified at the trial as being Ex. P.W. 3/1 to 22. It is in acceptable (sic) as to why Baldev Raj was not apprehended and as to why evidence was not collected for prosecuting him.

2-B. The allegations are that on account of the disclosure made by Baldev Raj P.W. 13 went to Everest Printing Press of which the appellant is admittedly the proprietor. A search was carried out in the presence of the appellant and 2,000 postcards were taken into possession vide Ex. P.W. 4/A which was attested by the witnesses. According to P.W. 13:

These postcards were converted into two sealed parcels, each of 1,000 postcards. These postcards are in packets Ex. P.W. 1/1 to 20 of 100 each.

2-C. The search was witnessed by P. Ws. 4 and 11. Examined in Court P.W. 4 stated that he had joined the the police party which carried out in his presence the search of the Everest Printing Press on the 28th of March, 1970, in Gali Batashar, Khari Baoli. Delhi. Two thousand postcards were allegedly recovered and Ex. P.W. 4/A was prepared in respect of that seizure. When the postcards were shown to the witness in Court, he stated.

I have seen the postcards Ex. P.W. l/l to 20. These are the same postcards which were recovered.

The witness who happened to be a resident of Lajpat Nagar, New Delhi was included in the police party when he was in Khari Baoli. According to him. he had made a request that he should be joined as a member of the raiding party. The reason given was that being the Editor of a journal "Law of the Land" he felt interested in discovering bs to what actually was happening in the matter of forging of stamps and postcards. It was put to him whether there was some indication mark on the postcards on account of which he was identifying them in Court. He said:

There is no mark on these postcards for me to say that these are the same postcards which had been recovered from the accused.

His testimony was challenged by suggesting that he was a stock witness of the police. He replied:

It is incorrect to suggest that I am a stock witness of the police and I am deposing falsely.

It was not put to the witness that he had appeared as a witness at any particular trial. No evidence was adduced to establish that P.W. 4 was a stock witness of the police.

2-D. P.W. 11 who also witnessed the search belonged to the Postal Services. He was functioning as Assistant Superintendent in the office of the Controller, Postal Services. He supported the version given by P. Ws. 13 and 4. He corroborated that 2,000 postcards were recovered from the Everest Printing Press of which the appellant was the proprietor and were taken into possession as evidenced by Ex. P.W. 4/A which he had signed.

3. The postcards along with some others recovered in the course of different investigations were sent to Nasik for getting expert opinion as to whether the same were forged or not. P.W. 1 B, N. Kulthe, Expert in forged currency, banknotes and other security items who examined the postcards when produced in Court stated:

They were all in sealed conditions On opening the parcel I found that there was a huge number of post cards and on examination. I found that those were printed from the blocks which were also in the sealed parcels. There were also some genuine post cards in the parcel. The forged post cards have been printed from blocks manufactured by photography, single and reply post cards. The fine details of Ashoka pillar in the stamp have been impaired due to reproduction and the fine lines in the background appear thick and broken at place. The shapes of letters and dotted lines of the address appear thick and irregular in size. The buff paper used for printing the forged post-cards is of a lighter shade in colour and of smooth surface. The forged post cards have been printed 4 on a sheet and cut while introducing tags which are wider than those found in the genuine post cards.

The deposition disclosed that some of the postcards which were examined by P. W 1 at Nasik were genuine while many of them were forged. Giving reasons for his opining that he had found the post-cards forged he deposed that the inks used in printing them differed in. shades when compared with the genuine post-cards.

3-A. A sealed parcel bearing the seals of the India Security Press, Nasik was opened and the witness stated that the seals on the cloth were genuine.

3-B. As the appellant was being prosecuted on account of 2,000 forged post-cards allegedly recovered from the Everest Printing Press of which he was the proprietor the witness on being shown the 20 packets containing them identifying the same stated in examination-in-chief' These post cards are marked packet-wise as Ex. P.W. 1/1 to 20 of 100 postcards each.

The cross-examination reveals that the identity of the post-cards examined by P.W. 1 at Nasik and those shown to him in Court in packets Ex. P.W. 1/1 to 20 was never questioned.

4. The learned Counsel appearing for the appellant has, in the first instance, urged that in carrying out the search P.W. 13 committed a breach of the provisions contained in Sections 98, 103 and 165 of the Criminal Procedure Code, hereafter called "the Code". All the three provisions are reproduced here:

S. 98 (1) If a District Magistrate, Sub-divisional Magistrate. Presidency Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property.

or for the deposit or sale or manufacture or forged documents, false seals or counterfeit stamps or coin or instruments or materials for counterfeiting coin or stamps or for forging.

or that any forged documents, false seals or counterfeit stamps or coin, or instruments or materials used for counterfeiting coin or stamps or for forging, are kept or deposited in any place.

or, if a District Magistrate, Sub-divisional Magistrate or a Presidency Magistrate, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit, sale, manufacture or production of any obscene object such as is referred to in Section 292 of the Indian Penal Code or that any such obscene objects are or kept deposited in any place.

he may by his warrant authorise any police officer above the rank of constable:

(a) to enter, with such assistance as may be required, such place, and

(b) to search the same in manner specified in the warrant, and.

(c) to take possession of any property, documents, seals, stamps or coins therein, found which he reasonably suspects to be stolen, unlawfully obtained, forged, false or counterfeit, and also of any such instruments and materials (or of any such obscene objects) as aforesaid, and

(d) to convey such property, documents, seals, stamps, coins, instruments or materials (or such obscene objects') before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose thereof in some place of safety, and

(e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or manufacture or keeping of any such property, documents, seals, stamps, coins, instruments or material (or such obscene objects) knowing or having reasonable cause to suspect the said property to have been stolen or otherwise unlawfully obtained, or the said documents, seals, stamps, coins, instruments or materials to have been forged, falsified or counterfeited, or the said instruments or materials to have been or to be intended to be used for counterfeiting coin or stamps or for forging or the said obscene objects to have been or to be intended to be sold, let to hire, distributed, publicly exhibited, circulated, imported or exported.

(2) The provisions of this section with respect to

(a) counterfeit coin.

(b) coin suspected to be counterfeit, and

(c) instruments or materials for counterfeiting coin, shall, so far as they can be made applicable, apply, respectively, to

(a) pieces of metal made in contravention of the Metal Tokens Act, 1889, or brought into (India) in contravention of any notification for the time being in force under Section 19 of the See Customs Act, 1878

(b) pieces of metal suspected to have been so made or to have been so brought into (India) or to be intended to be issued in contravention of the former of those Acts, and

(c) instruments or materials for making pieces of metal in contravention of that Act.

Section 103 (1) Before making a search under this Chapter, the officer or other person 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 an 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.

(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.

(5) Any person 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 or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian penal Code.

S. 165 (1) 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 authorised 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 may. after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.

(2) A police officer proceeding under Sub-section (1) shall, if practicable, conduct the search in person.

(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time he may (after recording in writing his reasons for so doing) require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, (specifying the place to be searched and, so far as possible, the thing for which search is to be made) and such subordinate officer may thereupon search for such thing in such place.' (4) The provisions of this Code as to search-warrants and the general provisions as to searches (contained in Section 102 and Section 103) shall, so far as may be, apply to a search made under this section.

(5) Copies of any record made under Sub-section (1) or Sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate:

Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost.

Sections 98 and 103 occur in Chapter VII-B of the Code. As the opening part of Sub-section (1) in Section 98 shows if a District Magistrate. Sub-divisional Magistrate, Presidency Magistrate or Magistrate of the first class receives information then after such inquiry as he may think it necessary to hold he may pass the orders contemplated by the provision. There is no prohibition in Section 98 that a police officer cannot without a prior permission obtained under that provision carry out a search. It is only where an order has been passed under Section 98 that the search has to be carried out in the manner which may be specified in the warrant issued for the purpose.

5. Section 103 of the Code prescribes that before making a search in any place two or more respectable inhabitants of the locality shall be called to witness it. The police officer is authorised to issue an order in writing requiring such attendance. Section 165 of the Code gives the power that where in the course of an investigation a police officer for reasons to be recorded in writing emergently wants to make a search for anything he may proceed to make the search and in that case the provisions in Sections 102 and 103 of the Code shall apply only as far as may be to such search.

6. Section 165 gives exceptional power. There may be circumstances where any indecision or delay on the part of the Investigating Police Officer may lead to the disappearance of the thing the seizure whereof may be imminently necessary for promoting the investigation. In its own scope the provision gives an authority which is not subject to the rigours of Section 103 of the Code which may be complied with as far as it may be practicable.

7. The intendment in Section 103 of the Code is that two respectable persons of the locality in which the place to be searched is situated shall be joined in the investigation before conducting the search in order to create confidence that the recovery had been made in the presence of the inhabitants of the locality. Section 165 of the Code takes into account a situation where the deliberations to comply with Section 103 of the Code may instead of promoting investigation cause a debacle by spreading the news in the locality that a search of a particular place was going to be made. Sections 98, 103 and 165 of the Code reveal that the provisions are meant to regularise searches as also to provide for all eventualities.

8. It is urged that P.W. 4 belonged to a far off place in Lajpat Nagar and P.W. 11 instead of being from the locality belonged to the Postal Services and was as such interested in supporting the prosecution case. The argument deserves to be considered in the light of the circumstances which confronted P.W. 13. He had after recording the statement made by Babu Ram seized 22 postcards from M/s. Baldev Raj and Co. He had the immediate information with him that a search of the Everest Printing Press belonging to the appellant may lead to a further seizure of forged postcards. He reached the premises at 9.30 p.m. and carried out the search. In those circumstances any indecision on his part or any hesitation in investigation may have caused the leakage of the information resulting in disappearance of the forged postcards from the press. I hold that he acted within the scope of Section 165 of the Code and complied with Section 103 thereof as far as it was possible. What has to be considered is the absence of the proof on the record that while acting under that provision he recorded the grounds for his belief that the circumstances required that he should forthwith carry out the search for a specified thing. Ordinarily a police officer must record such grounds. But then there may be circumstances where the time spent on such compliance may injure the very purpose of the search and may interfere with an immediate recovery. Will the absence of recording the grounds, on which the police officer may have acted within Section 165 of the Code vitiate a trial which may result from such a search ? The answer may be found after considering the cases cited before me. In Sunder Singh v. State of Uttar Pradesh , the case revealed peculiar circumstances. The body of deceased Ram Lai was found lying behind the residence of a Minister and the Sub-Inspector of Police who started investigation noticed blood marks on the shoes of the appellant. He at once arrested him. Two rickshaw drivers who were passing by accompanied the Sub-Inspector who was taken by the accused to the room wherein he resided and the lock whereof was opened by him. The Police Officer then carried the search which was witnessed by the rickshaw drivers just picked from the road side in an emergency. Inside the room was a box which also was unlocked by the appellant with a key which he had with him. From that box in the presence of those chance witnesses, the rickshaw drivers, the Sub-Inspector recovered the blood-stained khaki shirt and pants. Then they proceeded to a culvert. From underneath that culvert was recovered a small sword the alleged weapon of offence. All the searches were witnessed by the two rickshaw drivers. The Supreme Court, observed:

So far as the taking into possession of the shoes of the appellant which had blood-stained marks was concerned that was not the search of a place and Section 103 of the Code was not attracted to it.

As regards the search made after the opening of his residential room by the appellant of that case and the one carried out in consequence whereof a small sword was recovered at the instance of the accused, the Court held that the absence of the witnesses from the locality did not vitiate the legality of the proceedings. The Supreme Court took the view that the investigation under the Code is for collecting evidence and even when there is a breach of Section 103 of the Code the irregularity will be taken into account for weighing the evidence cautiously.

8-A. An irregularity in an investigation unless it is shown that it is tainted by gross illegality which may have caused miscarriage of justice, would be curable in terms of Section 537 of the Code.

9. I have been referred to Radha Kishan v. State of Uttar Pradesh . Section 165 of the Code came in for discussion in the judgment and it was observed:

It may be that where the provisions of Sections 103 and 165, Criminal Procedure Code are contravened the search can be resisted by the persons 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. But beyond these two consequences no further consequence ensues.

In A. C. Sharma v. Delhi Administration, 1973 Cri LJ 902 paragraph 14 : observations were made to the effect that where any breach of the mandatory provisions pertaining to the investigation of a case is brought to the notice of the trial Court at an early stage there will be an occasion to consider the nature and the extent of the violation and appropriate orders may be passed for such re-investigation as may be called for.

10. It is the scope of Sections 98, 103 and 165 of the Code which is to be kept in view, Section 98, when orders are passed in exercise of the jurisdiction provided by it. will permit the prescribing of the manner of search in a warrant which may be issued for that purpose, I do not find in the provision any mandate imposing an obligation impairing the power given by Section 165. There may be various contingencies arising out of the peculiar circumstances pertaining to each investigation calling for action under any of those provisions.

11. In this case I do not find that the failure to call two witnesses from the locality in any way caused such an illegality in the investigation which may be held to have in any manner vitiated the trial. The learned Counsel appearing for the appellant urges that in any case on account of non-compliance with Section 103 of the Code the evidence pertaining to the recovery of the alleged 2,000 postcards from the alleged exclusive possession of the appellant may be considered with great caution. It is with care and caution that I have gone through the statements made by P. Ws. 4, 11 and 13. Some of the portions in those statements have been reproduced earlier. Those depositions clearly prove the recovery of 2000 postcards from the premises belonging to the appellant. The testimony also establishes the identity that the very postcards which were recovered, were examined by P.W. 1 and found forged. P.W. 1 had deposed that the concerned forged postcards marked packet-wise were comprised in Ex. P. Ws. l/l to 20. I find that P.W. 13 after stating that he had prepared Ex. P.W. 4/A after seizing 2000 postcards proceeded to depose regarding the postcards shown to him in Court:

These postcards are in packets Ex. P. Ws. 1/1 to 20 of 100 each.

The two P. Ws. were never cross-examined to displace that stand. It was never put to P.W. 13 that he had replaced the postcards recovered from the premises of the appellant by forged ones and for some inimical reason had sent forged postcards to Nasik instead of sending those which he had recovered.

12. The allegation being that the postcards were recovered from a projection inside the premises the appellant adopted a curious stand when under his instructions it was put to P.W. 4 that the postcards were found in the basement after descending the stairs. The answer given by the witness, was:

It is incorrect to say that these postcards were found in the basement after descending the stairs.

13. While answering the questions put to him under Section 342 of the Code in his answer to question No. 12. the appellant in a Part of it, stated:

The key of the premises was demanded from me and I handed over the key to the police and they unlocked the premises, but nothing was recovered from there.

As noticed above, it was suggested on behalf of the appellant to P.W. 4 that the postcards had been recovered from the basement after descending the stairs. While replying to question No. 12 put to him in the course of his examination under Section 342 of the Code although the appellant stated that nothing had been recovered he made a clear admission that the key of the premises was demanded from him and he had handed over the key to the police. The consequence of such an answer is to be appreciated in the light of Sub-section (31 in Section 342 of the Code, which is:

S. 342 (3). The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

Sub-section (3) quoted above permits that the answers given by the accused when he is examined under Section 342 of the Code may be taken into consideration along with other evidence which the prosecution may have produced.

14. A careful consideration of the statements made by P. Ws. 4, 11 and 13 leads to the conclusion that the premises were in the exclusive possession of the appellant. The answer given to question No. 12 is only a corroboration of the evidence of the aforementioned witnesses. I do not accept the contention that the forged postcards were not in the exclusive possession of the appellant. At one stage it was urged that I may take into consideration the modus operandi of the appellant in keeping the postcards. The learned Counsel appearing for him urged that although he had not admitted the recovery of the forged postcards the appellant's modus operandi for keeping them may be considered. The submission was that the appellant could not have known that the postcards were forged. The argument does not impress me. The appellant was the proprietor of a Printing Press known as the Everest Printing Press. Although there was no justification with the Investigating Officer for not arresting Baldev Raj from whom 22 forged postcards had been recovered it stands established that P.W. 13 proceeded straight to the Everest Printing Press after recovering them. The normal urge of the Investigating Officer was to proceed to the press owned by the appellant in order to discover "the thing" i.e.. the alleged forged postcards. He was acting with promptitude postulated by Section 165 of the Code. If he had spent time in searching for witnesses from the locality the very aim for which the search was to be made may have been frustrated. The premises searched were in the exclusive possession of the appellant. He was the proprietor of the printing press. There is no explanation on the record as to why he had such large quantity of postcards with him. P.W. 1 gave the reasons which led to his conclusion that the postcards were forged.

15. With the evidence on the record I hold that the prosecution succeeded in establishing the guilt of the accused under both the provisions of the Indian Penal Code and the convictions are well merited. The Court below exercised leniency in imposing sentence.

16. This appeal calls for no interference and is dismissed.