Panch Witness is Not an Independent Witness

The panch witness is not an independent witness. He displayed a partisan attitude towards the police, was under their influence, and therefore signed the papers as the police wanted. The panchnama proved by the panch witness is thus of doubtful value. No attempt seems to have been made to select individuals from the locality, suggesting that the raiding authority wanted persons who were amenable to them.

Panch Witness and Search Witness

This would only affect the weight of the evidence supporting the search and recovery.

The mere irregularity committed by the searching officer in taking a witness from the road, who lived a couple of miles away in the city, cannot be deemed sufficient to invalidate the search or make the recovery unreliable. The police officer who conducted the search testified that he had taken four people on the way to the location, one of whom was produced as a witness in the case.

That witness stated that he lived two and a half miles away. It was contended that because other witnesses were not produced, they should be presumed to be locals. However, no such presumption can be drawn from the non-production of the witnesses. The persons taken on the way may still have been from the same locality, and even if they were not, it would not invalidate the search.

Whatever breach of Section 100 (formerly Section 103) may have occurred, the evidence regarding the recovery of articles is not inadmissible, nor is a conviction based on such evidence illegal. What is really intended by Section 100 (formerly Section 103) is that it should be strictly followed, to the extent possible, to ensure that incriminating articles were recovered as alleged, leaving no room for doubt.

If the search is defective, it cannot be said that the evidence from the search is inadmissible or that the case must necessarily fail. In such cases, it simply becomes the duty of the court to assess the evidence from the search with more than ordinary caution.

There is nothing in the law that invalidates evidence from an irregular search. Once it is established that the evidence regarding the recovery of articles is reliable, a conviction can still follow.

In Gopalpura Tea Co. v. Calcutta Corporation, the Court held that it is well-settled that even the failure to call search witnesses will not vitiate the search. The essence of the provision in Section 100 (formerly Section 103) is that an honest effort should be made to secure the presence of respectable persons from the locality. However, if no such witness is available, the search will not be invalidated solely for that reason, and each case must be decided on its own facts and circumstances.

End Notes:

• Jairamdas v. State, AIR 1956 Bom 526: 1956 Cri LJ 725; see Administration, AIR 1976 SC 449: 1976 Cri LJ 346.
• Maha Singh v. State (Delhi).
• Amritlal v. State of Maharashtra, 1978 UCR 526 (Bom).
• Sunder Singh v. State of U.P., AIR 1956 SC 411; see also Budha Majhe v. State, (1964) 2 Crn.
• AIR 1966 Cal 51.

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