A recovery memo is admissible in evidence, except for the accused's signature, which cannot be used to prove a confession made to a police officer under Section 25 of the Evidence Act.

1. 1. The State has filed this petition under Section 482, Criminal Procedure Code, against the order dated 3-10-1982, passed by the Judicial Magistrate, First Class, Parbatsa whereby the learned Magistrate held that the recovery memo being signed by the accused, is inadmissible in evidence, as it amounts to confession made by the accused to a police officer.

2. The non-petitioner Lichman was prosecuted for the offence under Section 4/2, Rajasthan Prohibition Act. On an information by a Mukhbir, the S. H. O., Police Station, Pilwa, along with the police party laid an ambush and intercepted the accused, who was proceeding on a Motor Cycle RJZ 8267. On checking, it was found that on the rear seat of the Motor Cycle there was a black rubber tube filled with liquor. It was found that it was an illicit liquor containing about 20 bottles. The liquor was seized in the presence of Motbirs Bhanwar Lal and Kana Ram and a recovery memo was prepared. Besides the Motbirs, the recovery memo was also got signed by the accused. During the course of evidence an objection was raised on behalf of the accused that the recovery memo is inadmissible in evidence under Section 25, Evidence Act. The learned Magistrate heard the arguments and held that the same is inadmissible in evidence, as it amounts to confession made by the accused to the S. H. O. The State has now submitted this petition challenging the order of the learned Magistrate.

3. I have heard Shri Dev Lal Vyas, learned Public Prosecutor, for the State. Nobody appears on behalf of the non-petitioner despite service of notice.

4. The question that emerges for consideration in the present petition is as to whether the recovery memo of liquor is wholly inadmissible in evidence or it can be admitted into evidence to a limited extent. It may be stated that the liquor was recovered in the presence of Motbirs from the possession of the accused when he was intercepted and that fact has been recorded in the recovery memo. It is true that the police could and should have avoided obtaining of the signatures, but simply because the signatures of the accused had been obtained, in my opinion, the whole of the document cannot be found to be inadmissible in evidence. The document can be admitted into evidence, but the only restriction that can be placed on the prosecution to prove the document is that the prosecution would not be able to prove that the accused signed the recovery memo. The fact of recovery of the liquor from the possession of the accused, can be proved by the S. H. O. and by the Motbir witnesses. But it cannot be proved by them that the recovery memo was signed by the accused in their presence, thereby proving it that the accused made a confession of the fact of recovery of liquor from his possession. No doubt the learned Magistrate has found the recovery memo inadmissible in evidence placing reliance on a decision of the Lahore High Court in Behari Lal v. Crown, AIR 1927 Lahore 343 : (1927-28 Cri LJ 323) . In that case a house was searched and on the recovery list the accused had put his signature. It was held,-

"That the fact of the accused putting his signature on the recovery list is not admissible in evidence against him in a case in which the possession of the house was in question because it would be an incriminating statement of the nature of a confession to a police officer and could not be proved by reason of the prohibition contained in Section 20."
In that case the petitioner Behari Lal was convicted of the offence under Section 61, Excise Act, by the Magistrate and the conviction was upheld in appeal by the Sessions Judge and a revision was preferred before the High Court. It very much weighed with the trial Magistrate and the Sessions Judge that the accused has put his signatures on the list of recovery and on that basis it was found that the accused was in possession of the house from which the excisable articles were recovered. The High Court did not find any satisfa