Leading Judgment on basic concept of panchnama

These provisions demonstrate that a search and seizure under the said Act has to be carried out in the presence of at least two respectable inhabitants of the locality where the search and seizure is conducted. These respectable inhabitants are witnesses to the search and seizure and are known as "panchas". The documentation of what they witness is known as the panchnama. The word 'nama', refers to a written document. Its type is usually determined by the word which is combined with it as a suffix. Examples being, nikah-nama (the written muslim marriage contract), hiba-nama (gift deed, the word hiba meaning - gift), wasiyat-nama (written will) and so on. So a panchnama is a written record of what the panch has witnessed. In Mohan Lal v. Emperor MANU/MH/0124/1940 : AIR 1941 Bom 149, it was observed that "[the panchnama is merely a record of what a panch sees...." Similarly, the Gujarat High Court in the case of Valibhai Omarji v. The State MANU/GJ/0067/1963 : AIR1963Guj145 noted that "[a] Panchanama is essentially a document recording certain things which occur in the presence of Panchas and which are seen and heard by them." Again in The State of Maharashtra v. Kacharadas D. Bhalgar MANU/MH/0222/1978 : (1978)80BOMLR396 , a panchnama was stated to be "a memorandum of what happens in the presence of the panchas as seen by them and of what they hear".

16. We have examined the meaning of the word panchnama in some detail because it is used in Explanation 2(a) to Section 158BE of the said Act although it has not been defined in the Act. A panchnama, as we have seen is nothing but a document recording what has happened in the presence of the witnesses (panchas). A panchnama may document the search proceedings, with or without any seizure. A panchnama may also document the return of the seized articles or the removal of seals. But, the panchnama that is mentioned in Explanation 2(a) to Section 158BE is a panchnama which documents the conclusion of a search. Clearly, if a panchnama does not, from the facts recorded therein, reveal that a search was at all carried out on the day to which it relates, then it would not be a panchnama relating to a search and, consequently, it would not be a panchnama of the type which finds mention in the said Explanation 2(a) to Section 158BE.

IN THE HIGH COURT OF DELHI

ITA 1198/2008

Decided On: 12.11.2008

Commissioner of Income Tax

Vs.

 Shri S.K. Katyal

Hon'ble Judges/Coram:

Badar Durrez Ahmed and Rajiv Shakdher, JJ.

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Golden Rules for appreciation of Evidence of Panch witness

"The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute no for the purpose of helping the indicated person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty are not independent person. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent on the police or other officials for any purpose whatsoever."

Thus, summing up the ratio of the judgments cited above, and proper interpretation of the independent character of the witnesses, some important aspect will have to be considered and kept in view, it can be enumerated for consideration. Its limited listing would not be a proper one. There would be other factors also which would weigh at the time of considering the independent or dependent character of the witness who had acted as a panch witness for police in raids or seizures. They can be numbered but cannot be limited. (1) the status of such witness in the society, (2) whether such witness is amenable to police influence, (3) whether such witness has ground to be afraid of police or such reading agency - Whether such person has any cause to beg for the favour of police or such raiding agency, (4) whether such person can afford to displease the police or such raiding agency, (5) whether such person can remain fearless and can refuse the request of police or such agency to act as panch witness for untruthful case but has accepted to act as panch witness only for helping the cause of law and justice in truthful case. (6) whether such person has any independent source of livelihood or whether he is dependent on police or such raiding agency for his livelihood or his status in the society, (7) whether the witness has regard to the rule of law and therefore has acted as a panch witness or a witness, (8) whether such a witness is law abiding person and himself happens to be a disciplined and law regulated person, (9) whether he is found to be law breaking person, whether there is any suspicious things in his ways of livelihood, behaviour or conduct. (11) whether police or such raiding agency had asked him the questions about his impartiality to acting as a panch witness or his participation in former cases of traps, raids and seizures.

9. On these and other relevant grounds the Court should examine evidence of such witness cautiously and carefully when it has come in the evidence that such witness has acted as panch witness in some other cases prior to the case in question. If he happens to be a person convicted or if he happens to be a Court bird or happens to be tainted on above mentioned points, the Court has got to be on its guard in accepting his evidence. Acting as panch witness in previous cases does not by itself and alone disentitle him of creditworthiness. A citizen cannot be stamped to be a liar unless his evidence has been examined with proper approach guarded by normal human experience and prudence of prudent person.

Bombay High Court

Benard Chapanga vs The State Of Maharashtra on 15 July, 2002

Equivalent citations: 2003 (2) ALD Cri 121

Bench: J Chitre

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