TMI Blog1982 (2) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh having been given up as won over, the prosecution case suffered from a fatal infirmity and should; therefore, be rejected on that scqre. The learned trial Court however, rejected this content1 on and accepting the official testimony convicted the petitioner Under Section 61(1)(a) of the Excise Act and sentenced him to six months' rigorous imprisonment and a fine of ₹ 1,000/-. 3. On appeal, the learned Sessions Judge again categorically rejected the argument on behalf of the . petitioner that the non-production of the non-official witness Inder Singh would be fatal to the prosecution case and observed that there was nothing particular about the handing over of the seals to a non-official, if the official witnesses can be accepted without corroboration. 4. This case first came up before my learned brother Tewatia J, and before him also the aforesaid contention was strenuously pressed on behalf of the petitioner. Noticing that the point was of some significance and frequent occurrence, the matter was referred to a larger Bench. Before the D. B. reliance on behalf of the petitioner was placed on Hans Raj v. State of Punjab, 1980 Chand LR (Cri) 74(Punj Har, which l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made up into a parcel, the parcel shall be secured with sealing wax bearing the seal impression of the responsible officer, and shall be similarly marked or labelled. Such articles or parcels shall be placed in safe custody, pending disposal as provided by law or rule. * * * * 8. What perhaps catches the eye in the first instance here is the fact that it is only in case where the articles are made into a parcel that this rule mandates the sealing thereof. learned Counsel for the petitioner could not point out to us any specific provision laying down as to what property must necessarily be made into a parcel. Apparently it is discretionary for the Investigating Officer to convert the sealed property into a parcel for special protection thereof or not. In cases where the article is not made into a parcel no requirement of sealing the same with wax bearing the seal impression of a responsible officer is spelled out. In such cases all that is specified is that such a property may be marked or labelled for proper identification. Obviously in these cases no use of a seal would at all arise. 9. Even the requirement of sealing the case puppetry, when made into a parcel, far from i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insaying the fact that under the aforesaid statute the very core of the offences sometimes rests on the adulteration of the recovered food-stuff as evidenced by the report of the Public Analyst with regard to the samples taken therefrom. Consequently this Act and the Rules framed thereunder ensure to the highest extent that the identity of the sample of the food-stuff should remain completely distinct and it should be conclusively established that the sample opined to be adulterated by the Public Analyst is taken precisely from the adulterated food-stuff recovered from the accused. Part V of the Prevention of Food Adulteration Rules, 1955(Rules 14 to 22-A) therefore, deals exhaustively with the sealing, fastening and despatch of samples. In particular, Rule 16 provides for the manner of packing and sealing the samples. What is. however, significant herein is that the meticulous provisions of these rules do not even remotely prescribe that the seal used for imprinting the sealing wax should thereafter be entrusted to any non-official. It is thus plain that even here where in essence the very offence is the adulteration of the food-sub and the samples drawn therefrom and the cornerst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it means is that the sample and the memorandum in form VII are to be kept separate from the specimen impression of the seal. It is immaterial if both these packets are handed over to one and the same person or sent to the Public Analyst at one and the same time through one agency. The literal meanings of the word 'separately' used in the context also do not give any other indication. It seems to follow from the above that within this jurisdiction there is high authority for the proposition that the success or failure of criminal prosecution should not turn wholly on the technicality of the handing over or non-handing over of the investigative seal or the production or he non-production only of a witness with regard thereto. 12. That the law does not visualise a plethora of seals with every Investigating Officer to be handed over to non-officials after their use and to remain in their custody. for an unlimited or unspecified period is otherwise manifest when viewed from another angle as well. It was conceded by the learned Counsel for the petitioner that in the varied gamut of the statute and the Rules in this context there is no specific provision that each Investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he whole purpose thereof is that the sealed property should bear the imprint of the seal of a responsible police officer who is enjoined with the safe custody thereof and disposal in accordance with law. In a way, therefore responsibility is cast on the police officer whose seal has been used that the parcel or the seal does not pass into irresponsible hands. The whole thrust of the provisions seems to be to cast the burden on the responsible police officer for the safe custody of the parcel and case property. To direct on the contrary that such a seal should be handed over during the material period to any non-official is something which may absolve the concerned officer of further responsibility without resting the same in law on any other. Such a view would provide no guarantee that the person to whom the seal is entrusted would necessarily be of a higher calibre and integrity. It had to be conceded before us that any third person entrusted with such a seal is under no legal obligation or displine to keep it under safe custody or not allow it to be passed on into unworthy hands bent upon tampering with the case property. Nor can it be ensured that such a person would not himsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the length of criminality, This approach has been repeatedly disapproved and dispelled by the final Court. In Aher Raja Khima v. State of Saurashtra , Chandrasekhara Aiyar J., has observed as follows : The presumption that person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration. In the light of the aforesaid observations; Beg J. speaking for the. Court in Nathusingh v. State of M. P. held as follows: The fact that the two witnesses called from amongst the member of the public namely, Raghunathsingh (P.W. J.) and Gambhirsingh Tomar (P.W. 2, had turned hostile was considered by the High Court and the Courts below. They had held that the two prosecution witnesses who had turned hostile could not be relied upon. Their evidence could not destroy the prosecution case or make it doubtful. The prosecution case is fully supported by Mahadevsingh (P.W. 5, and Umashankar (P.W. 6, who are police officers, The mere fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at if such a person dies or is untraceable or goes abroad and for reasons beyond control cannot be placed into the witness-box? Would these accidental circumstances by ihemselves wipe off the prosecution and the punishment of the criminals. As has been noticed earlier there is no provision or legal obligation which binds such a third person to keep the seal in safe custody etc, What if such a seal is lost or deliberately destroyed? Then would this also result in fatal consequences to the prosecution case. Again as it may often happen that a prosecution witness is subverted and either refuses to appear or refuses to support the prosecution case. Then should the end-result be necessarily an acquittal. It is unnecessary to be prolix in this context and the answer seems to be plainly in the negative. 18. Another slippery ground upon which the contention on behalf of the petitioner was sought to be rested was that the entrustment of the seal to a non-official and his production in the witness-box was a crucial link in the chain of prosecution evidence and in the absence thereof the whole case must snap. I am frankly unable to see how the mere seal, once used in the course of investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e office of the Superintendent of Police refused to accept the samples as the labels thereon were not in order. Their Lordships further found that the prosecution had failed to prove that the seals on the samples had remained intact throughout. It was noticed in terms that the samples remained in the custody of Sub-Inspector Aidanram, Nathu Singh, Gajraj Singh, Jawan Singh and the Assistant Public Analyst and yet no one of these witnesses was examined by the prosecution to prove that whilst in their custody they were not tampered with. On such peculiar findings of fact where the police officials themselves refused to accept the samples as being not in order where the seals thereon were not held to have remained intact and out of a host of five witnesses not one was put in the witness-box, their Lordships of the Supreme Court saw no reason to upset the acquittal by the High Court below on an appeal preferred by the Stale of Rajasthan. In the said case, in fact, the prosecution had itself realised the serious lacuna and had attempted to produce additional evidence both before the trial Court, appellate and revisional courts, but were denied such an opportunity by the courts in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence cannot be accepted with out independent corroboration. It could not be disputed before us that certificates of commendation for good work and monetary rewards are awarded to police officials in deserving cases. All these provisions are no more than a statutory recognition of the well-known fend salutary administrative practijce to give incentives for outstanding, efficient and diligent work. It would be going to extreme and unwarranted lengths to hold that such a provision turns the whole body of such officials into unacceptable partisan witnesses. These general provisions, therefore, of certificates and awards for crime detection cannot be myopically viewed as an incentive to forgery and fabrication of case property in the custody of responsible officials. I am, therefore, unable to. hold that because of para 24.19(13) of the Punjab Police Rules, the evidence of the police and excise officials would become unacceptable by itself and topple down to the level of accomplice evidence. 22. Coming now to the judgments of this Court it is undoubtedly true that in some of them, there are certain observations isolated or otherwise around which the superstructure of the argument on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any statutory provisions even were referred to. It would appear that whilst refusing to interfere with the acquittal of Gurcharan Singh, their Lordships gave the benefit also to Hans Raj petitioner who had been apprehended in virtually identical circumstances. For the very detailed reasons recorded in the earlier part of the judgment and with the greatest respect to the learned Judges we are unable to subscribe to the view that it is either mandatory to hand over the seal for the safe custody to a non-official or on his non-production, a finding in favour of the prosecution cannot be given. Consequently, we are constrained to .overrule the aforesaid view of the learned Judges in Hans Raj's case supra). 23. State of Punjab v. Bur Singh, 1978 Chand LR (Cri) 152(Punj Har) 1982 Cri. was again an appeal against the acquittal of the accused under the Punjab Excise Act. In declining to interfere with the acquittal, the Division Bench, in a brief order, consisting of a single paragraph, Whilst not entirely agreeing with the reasoning of the trial Court, sustained the acquittal on the ground that sub-inspector Gurdial Singh had stated that he had handed over the seal to Kashmir Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secution to call all witnesses who speak to facts which the Crown desire to prove. Ultimately it is a matter for the discretion of counsel for the prosecution and though a Court ought, and no doubt will, take into consideration the absence of witnesses whose testimony would be expected, it must judge the evidence as a whole and arrive at its conclusion accordingly taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witnesses. Therefore, in the ultima ratio criminal trials ordinarily turn and must continue to do so on the credibility and acceptability of the evidence on record. I am unable to hold that a criminal trial would succeed or fail merely on the technicality of the delivery of an investigating seal to a third person or the latter's refusal or inability to appear as a witness about the same. It is more so in the admitted position that there is no statutory requirement whatsoever to this effect. It has been authoritatively said though in the realm of contracts under seal that there is no magic in a water. Perhaps it may be said in the present context also that there is no magic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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