Decided on January 28,1966

STATE Respondents


N.G.SHELAT - (1.) Mr. Barot the learned Advocate appearing for the appellant-accused raised three contentions. The first is that the seizure of the bottle said to contain two drams of alcohol was not made in the presence of panchas. The next contention is that the prosecution has failed to show by any evidence that the muddamal bottle before the Court which was said to contain alcohol was the same which was in reality attached from the accused on 9-3-1963 and that it was the same which was sent to the Assistant Chemical Analyser Baroda for examination. The third contention is that even though that bottle containing alcohol carne to be seized by the P. S. I. Mohmadmiya on 9-3-1963 it was allowed to remain for unduly long period at the police station and that it reached the office of the Chemical Analyser so late as on 26-6-1963 and that came to be examined by the Assistant Chemical Analyser Mr. Trivedi after a period of over five months which again was characterised as far too more than one can call it a reasonable period. It was besides said that the prosecution has also not shown as to how it was sent to him for examination. From all that it was urged that there was every likelihood of the bottle being tampered with at the police station and it would be all the more so in cases where the bottle was seized by the Police Officer alone and not in the presence of the panchas who could have possibly affixed the seals under their signatures on that bottle.
(2.) Mr. Chokshi the learned Govt. Pleader however urged that when all of a sudden some information is received by a Police Officer about any person being in possession of any such thing or the like he may not in those circumstances wait for having the panchas called before he could seize and attach the bottle said to contain alcohol. That would no doubt be true. But in the present case much though the information was received by the P. S. I. while he was nearby the place from where the accused was found it was not that no persons were available as panchas from nearby that place. In fact it appears from the evidence of constable Jaswantsing who was present at that time that the shops nearby that place were open and were on their way to the place from where accused was found. The P. S. I. could have easily asked the police constable Jaswantsing to take with him some of the persons he found at the shops and no time would have been lost. The presence of panchas while searching any person or seizing any incriminating articles from him or from any place lends an assurance of everything done properly by the police both to the accused and also to the Court-they being independent persons witnessing the same. It was not a case of a Police Officer casually coming across a person on way and on suspicion searching his person that he may not have panchas on the spot at any such time. Whenever it is possible to have panchas within reach-the Police Officer should always see that they are called and more so when the article seized has to be affixed with seals of such panchas to remove any the slightest suspicion regarding the nature of contents found from a bottle as in the present case. It has assumed however considerable importance when such a long delay of about 3 months has occasioned in enabling the Police Officer to send the bottle to the Assistant Chemical Analyser Baroda. Whenever such a long delay has taken place the Court does expect the Police Officer to explain the same in his evidence. That has been not done. One can understand a delay of about a week or so at the most but a delay such as of 3 months when not explained justifies the defence to urge the possibility of its being tampered with at the police station. Since it did not bear the seals of independent persons such as the panchas that suspicion gets all the more strengthened. Baroda is not far off from Ahmedabad. Nor is there any dearth of communications which would take such a long time to see that the bottle had reached the place where it was required to be examined by the Assistant Chemical Analyser. In this connection I was referred to an unreported decision of this Court in a case in Criminal Appeal No. 186 of 1962 decided on 2nd August 1962 wherein even delay of about twenty six days in sending the liquid contents of a bottle to the Chemical Analyser was found to be objectionable so as to affect the merits of the case even though that bottle was attached in the presence of panchas under a Panchnama made by the police. The observations made in that respect run thus:- I fail to understand why the bottle was kept at the Police Station from 24th October 1960 to 21st November 1960. I can understand a certain amount of permissible delay occurring after the bottle is received by the Chemical Analyser for Chemical Analyser may be short of time owing to pressure of work. But it is impossible to understand the delay occurring at the Police Station in sending the bottle to the Chemical Analyser. It is of the utmost importance that in prohibition cases where any liquor is alleged to have been seized such liquor must be sent as soon as possible to the Chemical Analyser for examination and that it should not be allowed to remain at the Police Station for an inordinate length of time. With respect I agree with those observations and in my opinion the delay in the present case is far too great and since it has remained unexplained the benefit arising therefrom would and can certainly go to the accused-appellant in the circumstances of the case. Besides one can understand some delay on account of pressure of work in examining the liquor contents by the Chemical Analyser. But the delay caused in this case viz. of about more then five months can well be characterised as hardly permissible or reasonable in the case. The duty of such officer is to see that there arises no scope for any suspicion regarding the possibility or tampering with such a bottle or its contents or about the possibility of change occurring in the liquid contents by reason of great length of time. If inordinate or unreasonable delay is caused it is essential for the prosecution to explain the same for assuring the Court that it cannot prejudice the accused in that respect. Promptness on their part would help in not allowing the case to linger on for long and make the accused suffer in any manner on that account.
(3.) Not only that but the evidence in the case suffers from the other two infirmities referred to by Mr. Barot. The first is that the evidence led by the prosecution does not show as to in what manner and how that bottle was sent to the Assistant Chemical Analyser Baroda. This Court has expressed in several cases the essential requirement of leading such evidence by the prosecution to establish every link that is necessary for proving the fact about the bottle seized or attached by the police being the same which was sent to the Assistant Chemical Analyser and further that it reached him in the same condition with proper seals etc. Absence of such evidence also goes a great way against the prosecution. Turning to the evidence of the P. S. I. Mohmadmiya he does not identify the muddamal bottle containing liquor before the Court being the same which he happened to attach on 9-3-1963 as also the same which was sent to the Assistant Chemical Analyser for its examination. Nor does witness Jaswantsingh the police constable who was present at the time when the bottle was seized say anything in that direction. The evidence of Mr. Trivedi the Assistant Chemical Analyser Baroda also does not refer to the fact about the bottle before the Court being the same which was received by him and the contents whereof were examined by him. In other words even the identify of the bottle containing liquor which was before the Court has not been established as the same which was attached by the P.S.I. on 9-3-1963 and sent to the Assistant Chemical Analyser for his examination so as to establish the offence in respect of liquid contents of the muddamal bottle beyond any reasonable doubt.;

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