The mere non-production of the case property does not by itself vitiate the conviction of the accused.

S.S.SANDHAWALIA, J.

1. Whether the non-production of a part or the whole of the case property in a criminal trial, would by itself, vitiate the conviction of the accused thereafter is the somewhat meaningful issue which has necessitated this reference to the Division Bench.

2. On the 6th of May, 1977, Head Constable Rajinder Singh P.W. 1 and Excise Inspector Randhir Singh P.W. 2 received secret information against the petitioner whilst on patrol duty. The police party then joined a public witness Sadhu Singh and raided the house of the petitioner in his village Ganna Pind. On interrogation by Rajinder Singh Head Constable, the petitioner made a disclosure statement, Exhibit P.A. that he had kept concealed one drum containing lahan in his courtyard under the earth. Thereafter he led the police party to the place of recovery and got recovered drum Exhibit P.1 containing as much as 150 kilograms of lahan. This was tested by Randhir Singh, Excise Inspector, who found it fit for distillation vide his report Exhibit P.E. The drum was duly sealed and taken into possession vide memo Exhibit P.B., and thereafter ruqa Exhibit P.C. was sent to the police station on the basis of which the first information report was recorded and further details of the investigation completed.

3. The trial Court accepted the testimony of P.W. Rajinder Singh Head Constable and P.W. Randhir Singh, Excise Inspector and observed that the defence counsel had failed to point out even a single discrepancy in their statements. No challenge seems to have been raised against the other corroborative evidence, documentary or oral. The bald plea of false implication by the petitioner as also the testimony of his solitary defence witness Malkiat Ram was rejected. It calls for notice that no objection whatsoever with regard to the production or otherwise of the case property was raised before the trial Court either during the proceedings or in the final arguments before it. Holding the petitioner guilty under S.61(i)(a) of the Excise Act, the petitioner was convicted to six months rigorous imprisonment and a fine of Rs. 1,000.00 .

4. In the appeal before the Court of Session it was for the first time sought to be urged that the conviction was vitiated because of the non-production of the case property and in any case because it had not been duly exhibited in Court. The learned Sessions Judge, however, took the view that this by itself was not an infirmity sufficient to reject the otherwise credible prosecution evidence which had been unreservedly accepted by the trial Court and seemed to be beyond the pale of any meaningful challenge. The conviction and the sentence of the petitioner were consequently maintained.

5. This revision petition first came up before me sitting singly. Learned counsel for the petitioner highlighted his solitary argument that the mere non-production of the case property by itself vitiated the conviction and sought to buttress the same by Darshan Singh V/s. State of Punjab, 1974 Chand LR (Cri) 321 and Satnam Singh V/s. State of Punjab, 1980 Cri LT 114 (Punj and Har). Reliance was also partly placed on certain observations of Tewatia J., in Cr. R. No. 491 of 1979 Teja Singh V/s. State of Punjab decided on 4th May, 1981.*In view of the considerable importance of the issue involved, which is not uncommon in occurrence, I had referred the matter to a Division Bench for an authoritative decision. * Reported in 1982 Chand LR (Cri) 144.

6. Mr. P.S. Sandhu the learned counsel for the petitioner has repeated and reiterated his earlier stand that no conviction can be allowed to stand in cases where there has been a failure (however, innocent or inadvertent) to exhibit the case property in the Court itself. In a nutshell the argument in this context was no production (of case property) no conviction.

7. We regret our inability to subscribe to any such abstract theory. The larger perspective of a criminal trial cannot be possibly lost sight of. Usual