Facts:
The accused, Yameen was found in possession of one buttondar knife in violation of Delhi Administration Notification. Accordingly, the accused was charged with the offence under Section 25 (1-B)(b) of the Arms Act, 1959.

State vs. Yameen
Jurisdiction: High Court Of Chhattisgarh, Bilaspur - Bench: Kapil Kumar Metropolitan Magistrate - Date Of Judgment: 5th February 2022

Issue:

1. Whether any prejudice has been caused to the accused or not?
2. Whether the weight of evidence is in any manner affected because of the non-compliance?
3. whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions or not?

Contentions:
According to the prosecution, both W1 HC Raj Kumar and PW2 Ct Fakir Chand testified that on 22.02.2020 they were out patrolling and the accused was apprehended based on secret information. According to them, public persons were asked to join the proceedings, but none agreed.

They stated that the accused was arrested and personally searched. They correctly identified the knife which was proved as Ex.P1 and the accused in the court. PW3 testified that he reached the site where the accused's custody and case property were handed over to him, as well as the preparation of the site plan and other ancillary procedures during the investigation. He correctly identified the accused. 

Ld. LAC for the accused vehemently argued that the accused was picked up from his home by police officials and afterwards the knife was planted upon him. They further stated that this got fortified with the fact that there is no public witness in the present case despite the fact that the accused was captured in a public place. 

Judgement & Reasoning:
Considering the facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of the CRPC. Merely mentioning that public persons were requested to join the investigation is of no avail. The names of those persons & what action was taken against those persons who refused to join the investigation were not mentioned. Hence, the above-mentioned creates doubt in the case of the prosecution.

Further, the seal after use was not handed over to any independent person. Seal after use was handed over to the police official. It appears that no effort was made to hand over the seal after use to an independent person. Considering the precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, there was a possibility of tampering with the contents of the sealed parcel cannot be ruled out and once doubt is created in the preservation of the sample the benefit of the same should go to the accused."

The case property was lying in the Maalkhana of the same police station, where the police officer having possession of the seal was posted. There were ample opportunities for tampering with the case property. Hence, considering the legal position, the benefit of the doubt should be given to the accused. Considering the testimonies, facts & circumstances of the case, it gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or the number of the said FIR was inserted in the document after its registration.

Further, it came to light that PW1 and PW2 did not offer their personal search prior to the search of the accused. Both of them had offered their personal search to some independent witness and had taken no precaution. The doubt as to the false plantation of the case property cannot be ruled out.No efforts were made by any of the police officials to lift the chance fingerprints from the knife in question and no efforts were made to collect this scientific evidence by the IO. 

The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond a reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused, he is entitled to the benefit of doubt resulting in the acquittal of the accused. In view of the above-said discussion, the prosecution had failed to prove the guilt of the accused. Accordingly, the court had acquitted the accused Yameen of the charges framed in the present case.

Reference:

• State v/s . Yameen On 5 February, 2022". Indiankanoon.Org, 2022, https://indiankanoon.org/doc/73016085/