Case: Ghuran Yadav Vs. State of Bihar

2. Accordingly to the prosecution story on October 9, 1963, ar of Excise (Special) organised a raid party for going to Mathar village, Police Station Khagaria, District Monghyr. The raid party included a Magistrate and some members of the armed police force. In that village a house alleged to belong to the appellant is said to have been searched and six bags ofy paid Ganja recovered from one of the rooms. As a result the appellant was prosecuted for an offence under Section 47(a) of the Excise Act. The appellant denied that his house was searched or anyy paid Ganja was recovered from his house. According to him, the house alleged to have been searched from which the Ganja in dispute was recovered did not belong to him. The prosecution in support of its case examined in all eight witnesses out of whom four witnesses werel and the remaining four official witnesses were a Magistrate, ar and an Assistantr of Excise and a peon of the Excise Department. The Magistrate trying the case has observed in his order that all thel prosecution witnesses (Nos. 1, 2, 3 and 5) had tried to help the accused though they were not declared hostile. The official witnesses, according to the Magistrate, had deposed that the house of the accused was searched after observing all formalities and six bags of NDP Ganja were recovered from the room facing south. On the question of ownership of the house alleged to have been searched the trial Court relied on the testimony of the Magistrate (P.W. 8) and of Ram Krishan Yadav (P.W. 3) and convicted the appellant, as already mentioned. The Additional Sessions Judge, on appeal, has observed in his judgment that the accused had not specifically stated either in his examination under Section 342, Cr. P.C. or in his written statement that the house actually searched did not belong to him and that without evidence showing that the accused had some other house in the village it could not be held that the house searched did not belong to him. According to the Judge, to quote his own words : "The knowledge regarding residence of a person in a house must not necessarily be personal and in all cases that can be imagined such a knowledge is only derivative and not direct". On this view the evidence of the Magistrate (P.W. 8) and of the, Excise (P.W. 6) was held to establish that the house from whichy paid Ganja was recovered belonged to the appellant and to none else. It was next argued there that the house searched was lying vacant and the appellant was not even present at the time of the search. On seeing the big raid party some of the villagers had started running away carrying with them some bags of Ganja, and it was suggested that some of such fleeing villagers might well have thrown some of those bags in the vacant house from where those bags are alleged to have been recovered during the search. The Appellate Court did not accept this contention as there was no evidence to support his theory. That Court, relying on the testimony of (P.W. 4) and (P.W. 6) felt that the recovery of the bags from a room inside the house and the fact that the house was closed on all sides, ruled out this possibility. After expressing this view the Court said :"The appellant had evidently taken to his heels at the sight of the raiding party, but six bags of Ganja were found inside a room belonging to him, and as has been noted by the learned Court below, the very nature of the commodity itself is such that anyone having such a big quantity of Ganja with himself can (not) plead ignorance of its existence in his house, because evidently it gives not a very strong smell which cannot be lightly ignored by anyone residing hereby. The appellant cannot, therefore, be permitted to plead that if the six bags of Ganja be held to have been recovered from his house, he was not in the know of the affair and was ignorant about it."      On this reasoning the appellants conviction was upheld by the Court of appeal. His revision having been dismissed in limine he has, as observed earlier, appealed by special leave. On behalf of the respondent the counsel prayed for condoning the delay in entering appearance which prayer was allowed.

Reasoning: 5. On going through the record and examining the evidence which we have just discussed we are clear that there is no legal evidence on the record on which we can sustain the conclusions of the courts below that it was the appellants house which was searched6. Normally this Court, of course, does not examine for appraisal under Article 136 of the Constitution the evidence on questions of fact decided by the courts below. But when there are reasons to think that the conclusions may be based on no evidence, then this Court is not only entitled but it has an obligation in the larger interests of justice to examine the evidence to see if there is legal evidence on which those conclusions can be sustained. In this case we find that there is no legal evidence on which the courts below could base their conclusionsn again we do not find anything about the person who identified the house to be that of the appellant. P.W. 7, Jamuna Prasad Singh, Excise peon was alsod about the ownership of the house searched and to quote his own words he learnt from Ram Krishan Yadav and Uchit Paswan about the location of the house of Churan". According to this witness, it is noteworthy, the appellants house was found locked before it searched. The matter was, however, not pursued by the counsel for the defence nor was any question put by the prosecuting counsel inn to clarify this matterIn the circumstances the question whether the house which was searched was locked and if so how the raid party entered it for carrying out the search, must, therefore, remain unanswered on the existing record. The last witness whose testimony requires to be noticed is the Magistrate A. A. Akbari (P.W. 8). According to him the raid party left for village Mathar on the night of October 8, 1963, under orders of the District Magistrate and it reached that village at 6 or 6.30 a.m. on the following morning. The order of the District Magistrate, it may be pointed out, was not produced in Court and is not on the record. As the party approached village Mathar some villagers were seen running away with bags on their heads. They were chased and arrested and contraband Ganja was found in these bags. This witness also claims to be present at the time the appellants house was searched and according to him, the search was effected "after observing the formalities of search". He has not specifically stated about the formalities except that "independent witnesses were present at the time of the search" without naming them. On every vital point his memory has failed him. He even admits that he had not entered the room from which the bags were recovered. In regard to the identity of the house all that he could say was that he had learnt from the villagers, whose names he could not remember, that the room searched belonged to Churan Yadav (appellant). As to why he has stated that the room and not the house belonged to the appellant is not clear. He does not even know if there is a Gram Panchayat or a Chowkidar in the village. It is thus obvious that his evidence is of little assistance on the question of ownership of the house searched as he has no personal knowledge and the names of the persons on whose information he depends for his testimony have not been disclosed. This witness has not stated if he had ordered the search of the house in question nor has he stated the reasons why it was considered necessary to search the house. Indeed, he neither remembers having signed the search list nor if he had put his seal anywhere. His evidence does not prove that the search was carried out with the requisite care and caution. The search, if any, which is said to have led to the recovery of the six bags in question appears to us on the existing record to have been effected in a manner which does not inspire confidence. But we need say nothing more on this point because the absence of evidence of ownership of the house is enough to determine the fate of the prosecution case.