There is no mandatory requirement under the law that the seal used by the police officer for sealing the samples must be handed over to a non-official witness forthwith, and the non-production of such a witness does not by itself affect the merits of the trial.

S.S.SANDHAWALIA, J.

1. Whether the fate of a criminal case would be sealed by the mere handing over or otherwise of the seal used by the police officer (for sealing the samples or the contraband property in the course of investigation) to a non-official witness ia the pointed question which has necessitated these two references to the larger Bench.

2. For the purposes of the legal issue aforesaid a brief reference to the facts in Criminal Revn. No. 969 of 1979, Piara Singh V/s. The State of Punjab, suffices. The petitioner on seeing the police party surreptitiously attempted to escape and having been apprehended, his personal search led to the recovery of 30,000 mls. of illicit liquor in a tube. A sample of 180 ml. was taken out and the remaining liquor was put into 40 bottles. The sample and the bottles were sealed with the seal of the Investigating Inspector and the same was handed over to the public witness Inder Singh. Before the trial Court it was sought to be argued that the aforesaid Inder Singh having been given up as won over, the prosecution case suffered from a fatal infirmity and should, therefore, be rejected on that score. The learned trial Court however, rejected this contention and accepting the official testimony convicted the petitioner under S.61(1)(a) of the Excise Act and sentenced him to six months rigorous imprisonment and a fine of Rs. 1,000.00 .

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 nonofficial, 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/s. State of Punjab, 1980 Chand LR (Cri) 74 (Punj and Har), which lent considerable support to the stand taken on behalf of the petitioner. Entertaining some doubt as to the correctness of the view taken therein a reference to the Full Bench was necessitated.

5. In Criminal Revn. No. 1401 of 1979, Harbhajan Singh V/s. State of Punjab, when it came up before me sitting singly, basic reliance was placed on the State of Punjab V/s. Bur Singh, 1978 Chand LR (Cri) 152 (Punj and Har) to contend that there being no satisfactory evidence that the seal used by the Investigating Officer had been entrusted to an independent person, the petitioner was, therefore, entitled to an acquittal on that score alone. Because of the identity or similarity of the question raised with that in Pira Singhs case, the matter was referred to be heard along with the same and that is how the issue is now before us.

6. It would be manifest from the above and was otherwise the common stand that a twin issue arises herein firstly, whether it is mandatory for the Investigating Police Officer to hand over the seal used by him for sealing the incriminating articles and the samples to a non-official immediately or soon thereafter and secondly 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.

7. At the outset it deserves highlighting that the learned counsel for the petitioner could not point out to any direct or inferential statutory provision or even an instruction worth the name which mandates the handing over of the seal used by the Investigation Officer to a non-official forthwith. Further no provision or instruction having statutory force could even remotely be referred to which spells out a binding requirement that the person to whom such a seal might have been e