S.100(5) CrPC | Witnesses Of Search And Seizure Not Required To Attend Court Unless Specially Summoned: Jharkhand High Court

Justice Ambuj Nath observed, “In order to prove the factum of recovery, it is sufficient for the prosecution to adduce the seizure list in evidence. Section 100(5) Cr.P.C. does not require the witnesses of search and seizure to attend the court as a witness unless specially summoned by the court. I do not find any irregularity on the ground that the seizure list witnesses did not appear in the court to record their evidence.”

The court highlighted that Section 100(5) of the Criminal Procedure Code (Cr.P.C.) does not mandate the attendance of search and seizure witnesses in court unless specifically summoned. No irregularity was found in the absence of these witnesses during the recording of their evidence.

In acquitting the petitioners, both aged 73-74, the court took note of their advanced age and the absence of any record indicating their conviction in other cases.

Justice Nath added, “The occurrence took place in the year 1995, about 28 years have elapsed since the date of occurrence. The petitioner Md. Reyazul is aged about seventy four years and the petitioner Safruddin @ Sarfuddin @ Sadhu is aged about seventy three years, there is nothing on the record to show that both the petitioners have been convicted in any other case. Accordingly, the order of sentence passed by the learned trial court directing the petitioners to undergo rigorous imprisonment for two years for the offence under section 414 of the Indian Penal Code is set aside.”

The petitioners were sentenced by the Lower Court to undergo rigorous imprisonment for six months for the offence under Section 414 of the Indian Penal Code. The period already undergone by the petitioners during the trial and during the pendency of this revision application, was set aside by Jiutice Nath.

The above ruling came in a criminal revision application filed against the judgement passed by the Additional Sessions Judge-XIV, Hazaribag in a Criminal Appeal whereby and wherein the Additional Sessions Judge-XIV, Hazaribag dismissed the appeal of the petitioners and upheld the judgment of conviction and order of sentence passed by the Judicial Magistrate, First Class, Hazaribag in connection with a General Registry (GR) Case holding the petitioners guilty of offence under section 414 of the Indian Penal Code and thereby sentencing them to undergo rigorous imprisonment for two years. The period of imprisonment already undergone by the petitioners during the trial was ordered to be set off.

The prosecution case was instituted on the basis of self-statement of the informant S.I. Arvind Kumar Choudhary of Sadar police station Hazaribagh alleging therein that on 29.08.1995 at about 02:00 AM, he received confidential information that some miscreants were transporting catechu biscuits in a white ambassador car. On the basis of this information an ambush was laid near Nagwa airport. The aforesaid vehicle was intercepted and about 2.40 quintals of catechu biscuits were found loaded on it. Both the petitioners were found traveling on the seized vehicle.

In order to prove its case, the prosecution adduced both oral and documentary evidence. Both the trial court as well as the appellate court came to a concurrent finding regarding the guilt of the petitioners.

The senior counsel for the petitioners contended that the trial court as well as the appellate court had wrongly come to a finding regarding the guilt of the petitioners, and had not considered the fact that the prosecution failed to examine the seizure witnesses. It was also contended that neither the seized car nor the seized catechu biscuits were produced in the court during the trial and in absence of any chemical examination report, it cannot be said that contraband so recovered was catechu biscuits. On these grounds, it was prayed that this revision application be allowed.

From the perusal of the oral testimony of the prosecution witnesses, the Court observed that S.I. Arvind Kumar Choudhary (P.W.5), who was the informant of the case, supported the allegations as made out in the written report.

The Court asserted, “It is true that the prosecution has not examined the seizure witnesses. Section 100 (5) of the Cr.P.C. provides that 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.”

Taking into account the impugned judgment, the Court observed, “it appears that the seized vehicle and the contraband were not produced in the court and the learned trial court has given a reason for non-production of these articles as the ambassador car bearing registration number DD-B-9213 and 2.40 quintals of catechu biscuit were confiscated in a confiscation proceeding as transpires from the letter number 668 dated 15.02.1996 which was kept on the record. Accordingly, the non-production of the vehicle and the seized contraband in the court during the trial has not affected the prosecution case.”

From the aforesaid oral and documentary evidence, the Court came to the finding that the prosecution was able to prove that on the date and time of occurrence, the petitioners were apprehended while traveling on ambassador car bearing registration number DD-B-9213 and 2.40 quintals of catechu biscuits were recovered from their possession.

“The learned trial court has rightly held them guilty for the offence under section 414 of the Indian Penal Code,” the High Court held.

Accordingly, the court affirmed the judgment of conviction passed by the trial court holding the petitioners guilty of offence under section 414 of the Indian Penal Code, and allowed the Criminal Revision Application.

Appearance :

For the Petitioner: Ms. Rashmi Kumar

For the Respondent: Mr. Ashish Jha

Case No.: Cr. Revision No. 1282 of 2016

Case Title: Md. Reyazul & Anr. vs State of Jharkhand

LL Citation: 2024 LiveLaw (Jha) 22

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