1982 (2) TMI 316 - HC - Central Excise

Issues Involved:
1. Whether it is mandatory for the Investigating Police Officer to hand over the seal used for sealing incriminating articles and samples to a non-official immediately or soon thereafter.
2. Whether the non-appearance or non-production of such a non-official, who was entrusted with the seal, would by itself be fatal to the prosecution case.

Detailed Analysis:

Issue 1: Mandatory Handing Over of Seal to Non-Official

The court examined whether there is any statutory or inferential provision requiring the Investigating Police Officer to hand over the seal used for sealing incriminating articles to a non-official immediately or soon after its use. The court found no direct or inferential statutory provision or instruction mandating this practice. The only provision remotely relevant was para 22.16(2) of the Punjab Police Rules, which mandates sealing parcels with the seal impression of a responsible officer but does not require handing over the seal to a non-official. The court noted, "It is discretionary for the Investigating Officer to convert the sealed property into a parcel for special protection thereof or not."

Additionally, the court observed that the Prevention of Food Adulteration Act and its Rules, which deal extensively with the sealing and despatch of samples, do not mandate that the seal used should be entrusted to a non-official. The court emphasized that there is no statutory or executive instruction requiring the Investigating Officer to hand over the seal to a non-official, nor is there any requirement for the non-official to be produced as a witness. The court concluded, "There is neither any mandatory nor even a directory provision requiring that the seal used by the Investigating Officer must be handed over to a third person forthwith."

Issue 2: Non-Production of Non-Official Witness

The court addressed whether the non-production of a non-official witness, who was entrusted with the seal, would be fatal to the prosecution case. The court highlighted that there is no statutory requirement for producing such a witness. The court stated, "There is no provision or instruction having statutory force which spells out a binding requirement that the person to whom such a seal might have been entrusted must be produced by the prosecution."

The court further reasoned that the mere handing over of a seal to a non-official does not ensure against tampering, as the non-official may not necessarily be of unimpeachable integrity. The court observed, "There can be no guarantee that the non-official to whom such a seal is entrusted would be one of unimpeachable integrity far above a responsible police official amenable to administrative discipline."

The court also noted that the argument for handing over the seal to a non-official stems from an inherent mistrust of police officers, which is not a judicial approach. The court cited authoritative precedents emphasizing the presumption that public officials act honestly. The court concluded, "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 non-production only of a witness with regard thereto."

Overruling Previous Judgments

The court overruled previous judgments that suggested the necessity of handing over the seal to a non-official and the fatal consequence of non-production of such a witness. Specifically, the court overruled the decisions in Hans Raj v. State of Punjab and State of Punjab v. Bur Singh, which had held that the non-production of a non-official witness to whom the seal was handed over was fatal to the prosecution case. The court stated, "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."

The court emphasized that criminal trials should focus on the credibility and acceptability of the evidence on record, rather than technicalities. The court stated, "The substantial issues of a criminal trial like the proof and punishment of serious crime ought not to be converted into a plaything of technicalities."

Conclusion

The court concluded that:
1. There is neither a statutory requirement nor a precedential mandate for handing over the seal used by the police officer in the course of an investigation to a third person forthwith.
2. The non-production of such a witness cannot by itself affect the merits of the trial.

The court directed that both criminal revisions go back for decision on merits before a Single Bench.

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