Police Malkhana Loss: Can Section 65 Application Be Allowed?

In legal proceedings, original documents form the backbone of evidence. But what happens when these documents go missing from police custody, specifically the Malkhana—the secure storage for seized property? A common query arises: Malkhana Lost by Police can Section 65 Application Allowed? This question tests the boundaries of Section 65 of the Indian Evidence Act, 1872, which governs the admissibility of secondary evidence when originals are unavailable.

This blog post delves into the legal framework, key conditions, judicial precedents, and practical recommendations. While courts have generally permitted such applications under specific circumstances, outcomes depend on proven facts. Note: This is general information based on precedents and not specific legal advice—consult a qualified lawyer for your case.

Overview of Section 65 Indian Evidence Act

Section 65 allows secondary evidence (like photocopies, certified copies, or oral accounts) when the original document is lost, destroyed, or otherwise unavailable, provided the absence isn't due to the party's negligence. This provision prevents injustice by ensuring parties aren't left remediless.

Courts emphasize that secondary evidence must be proved to the satisfaction of the judge, with the proponent showing reasonable efforts to produce the original. In police Malkhana cases, where originals are seized and later lost, the burden shifts to substantiate the loss without the party's fault. 2022 0 Supreme(Raj) 1670 2016 0 Supreme(MP) 1164

Key Conditions for Admissibility of Secondary Evidence

For a Section 65 application to succeed, several conditions must typically be met:

1. Proof of Loss: The party must demonstrate the original is genuinely lost. A mere claim isn't enough; supporting evidence like a police missing report or Malkhana register entries is crucial. Courts have rejected applications lacking substantiation. 2018 0 Supreme(HP) 234 2009 0 Supreme(Del) 280

2. No Negligence by Party: The loss must not stem from the applicant's default. If police custody caused the loss, this favors allowance, as the party isn't at fault. 2018 0 Supreme(Bom) 850

   Narvada Aggarwal vs Madan Lal Goel - Delhi

3. Reasonable Efforts: Evidence of searches, inquiries, or affidavits showing diligent attempts to locate the document. In Malkhana scenarios, certificates from police officials or CCTV footage (with Section 65B compliance for electronics) can bolster claims.

   MAJOR SINGH vs STATE OF PUNJAB - 2023 Supreme(Online)(P&H) 15861

4. Nature of Secondary Evidence: Photocopies, certified copies, or mechanical reproductions qualify if compared with the original before loss. 2015 0 Supreme(Raj) 722

Failure to meet these may lead to rejection, ensuring the provision isn't misused.

Judicial Precedents on Section 65 and Lost Documents

Indian courts have consistently upheld Section 65 applications in loss cases, including police Malkhana mishaps, when conditions are satisfied.

• In a notable case, the court permitted a photocopy of an agreement to sell as secondary evidence under Section 65(c) after verifying the original's loss. 2022 0 Supreme(Raj) 1670

• Another ruling stressed that absence due to non-neglect allows secondary evidence, reinforcing diligent proof requirements. 2009 0 Supreme(Del) 280 1977 0 Supreme(Mad) 11

• Where originals were lost in a record room fire, certified copies were admitted as secondary evidence, dismissing challenges to comparison possibilities. The court noted: The trial Court while allowing the application has lost sight of requirement of Section 65 (a) of the Act as the secondary evidence can be admitted in case the conditions prescribed under Section 65 are satisfied. But ultimately upheld it. 2017 0 Supreme(P&H) 2425

Malkhana-Specific Cases: Police Custody Losses

Malkhana losses frequently arise in criminal matters like NDPS or recovery cases. Courts scrutinize chain of custody but allow remedies via Section 65.

• In a Punjab High Court matter, CCTV footage from centralized Malkhana was produced with a Section 65B certificate. The petitioner approached after police confirmation: PW4-Harmeet Singh Hundal was the then incharge of centralized Malkhana as such under that capacity, he gave CCTV footage recording in pen drive along with certificate.

  MAJOR SINGH vs STATE OF PUNJAB - 2023 Supreme(Online)(P&H) 15861

• NDPS convictions were set aside due to Malkhana discrepancies: Whatever was seized and sealed at spot and samples that were made and entered in malkhana and what was actually sent to chemical laboratory for analysis were not same. This highlights risks but implies secondary evidence could cure if properly led. 2016 0 Supreme(All) 1255

• In a ganja seizure appeal, Malkhana entries were key: Ext. 15 is the application for keeping the ganja bags in the Court Malkhana. Yet, unproven documents led to acquittal, underscoring proof needs. 2016 0 Supreme(Ori) 388

• For electronic records in terror cases, Section 65B certificates were deemed unnecessary for primary evidence but curable later: Certificate under Section 65B of the Act is not required if electronic record is used as a primary evidence. Applications under CrPC Section 311 were allowed. 2023 7 Supreme 351

These precedents show courts balance fairness, allowing secondary evidence to prevent acquittals from procedural lapses, provided no prejudice to the accused.

Related Provisions: Section 65B for Electronic Evidence

Often intertwined, Section 65B mandates certificates for electronic records. In Malkhana losses involving digital evidence (e.g., CCTV), non-production is curable: Certificate under 65-B of the Act can be produced at any stage if trial is not over. 2023 7 Supreme 351 This extends Section 65 logic to modern evidence.

In suits for recovery, photocopies of cheques lost after handing to counsel were allowed: photocopies were made from original conditions of Section 63(3) of Act are fulfilled and in view of the affidavit of counsel condition of Section 65(c) of Act also stands fulfilled. 2015 0 Supreme(Raj) 722

Kishore Kumar VS Chanda

Practical Recommendations for Section 65 Applications

To maximize success when police lose Malkhana documents:

• File a Missing Report: Immediately lodge an FIR or formal complaint for the lost item, obtaining a copy as proof.

• Gather Supporting Evidence: Affidavits from witnesses, Malkhana registers, police communications, or prior photocopies. 2016 0 Supreme(P&H) 125 2019 0 Supreme(Raj) 1031

• Argue Necessity: Highlight how denial would leave you remediless, invoking justice principles.

• Comply with Formalities: For electronics, prepare Section 65B certificates early.

• File Timely: Use CrPC Section 311 if needed during trial. 2023 7 Supreme 351

By substantiating loss and diligence, courts typically allow applications. 2018 0 Supreme(HP) 234 2016 0 Supreme(P&H) 125 2022 0 Supreme(Raj) 1670 2016 0 Supreme(MP) 1164 2009 0 Supreme(Del) 280 2018 0 Supreme(Bom) 850 1977 0 Supreme(Mad) 11

Conclusion and Key Takeaways

Yes, courts may allow Section 65 applications when originals are lost in police Malkhana, provided loss is proven, efforts shown, and no negligence on your part. Precedents affirm this to uphold truth and fairness, from civil suits to NDPS trials.

Key Takeaways:- Substantiate loss with reports and affidavits.- Distinguish your case from police fault.- Leverage related provisions like Section 65B.- Seek professional advice promptly.

References: 2018 0 Supreme(HP) 234 2016 0 Supreme(P&H) 125 2022 0 Supreme(Raj) 1670 2016 0 Supreme(MP) 1164 2009 0 Supreme(Del) 280 2018 0 Supreme(Bom) 850 1977 0 Supreme(Mad) 11

MAJOR SINGH vs STATE OF PUNJAB - 2023 Supreme(Online)(P&H) 15861

Kishore Kumar VS Chanda

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