S. Barman, J.
1. This Government appeal is against the order of acquittal passed by the learned 1 Magistrate 1st Class, Rairangpur, District Mayurbhanj, acquitting the accused respondent herein of the charge of alleged refusal to give inspection and causing obstruction to search, punishable under Section 25(f) and (h) of the Orissa Sales Tax Act, 1947, in the circumstances hereinafter stated.
2. The prosecution case, shortly stated, was that : On June 13, 1959 the Assistant Sales Tax Officer (P.W. 1) went to the shop of the accused respondent, disclosed his identity and wanted to have an inspection, of the books of account, and it is said that the Officer found certain black books which he did not seize; then the said officer asked the accused respondent to open two drawers of an almirah and demanded production of what was described as Ucchanti Khata (Jot note book); the accused respondent however, refused to comply with the officer's demand and. did not open the almirah or the drawers; thereupon the officer asked the accused to comply with the law and cautioned him as to the consequences of his not complying with his request for inspection and search; the accused still refused and thereby he is said, to have caused obstruction to the Assistant Sales Tax Officer in the matter of inspection, search and seizure; thereupon the officer took down the statement of the accused which is marked Ext. 1 and 1/1 which was signed by the accused; there was no attesting witness to the statement. Immediately thereafter, another statement was taken from the accused which is marked Ext. 2 and 2/1 which also the accused signed; the second statement, namely, Ext. 2 does, however, bear the signature of two witnesses, namely one Madanlal Agarwalla and Hirala Agarwalla. Thereafter the Assistant Sales Tax Officer reported to his immediate superior the Commercial Tax Officer who in his turn, forwarded a report to the Commissioner of Sales Tax, Orissa, and got the sanction of the Commissioner for prosecution of the accused respondent.
3. At the trial, before the Magistrate, the prosecution called three witnesses including the Assistant Sales Tax Officer as P.W. 2, his clerk who accompanied the said Officer as P. W. 2 and the Commercial Tax Officer as P.W. 3 a formal witness, who had procured the sanction of the Commissioner for prosecution of the accused respondent. The documents, relied on in support or the prosecution, are Exts. 1 and 2 being the said statements signed by the accused as aforesaid. There is also a document, namely, an anonymous letter which is marked 'X' on the basis of which the Assistant Sales Tax Officer had gone to the premises of the accused for inspection, search and seizure as aforesaid. On behalf of the accused respondent, only one witness was called namely, one Rani Chandra Patnaik, a cultivator, who is stated to be a mere chance witness.
4. The learned Magistrate, on consideration of the evidence adduced before him, found that the Uchhanti khata was not demanded by the Assistant Sales Tax Officer as the prosecution case is; the learned Magistrate drew adverse inference from the fact that the said two attesting witnesses to the accused respondents statement (Ext. 2) were not examined on behalf of the prosecution; further that in any event the statements of the accused are not admissible in evidence by virtue of the provisions of Section 24 of the Evidence Act because the statements were treated as a confession made by the accused; on merits on the question - whether the facts, as stated in the prosecution report amounted to refusal to comply with the request of the Tax Officer or obstruction to making an inspection, search or seizure as contemplated under Section 25(f) and (h) of the Orissa Sales Tax Act, the learned Magistrate, by referring to certain inconsistencies in the evidence of the Prosecution witnesses, as fully discussed in his judgment, came to the conclusion that the accused did not refuse to comply with any requirement made of him as alleged nor did he cause any obstruction as alleged and accordingly the learned Magistrate gave the accused the benefit of doubt and acquitted him of the charge.
5. The main points, - urged on behalf of the Style of Orissa (appellant herein), - are that the learned Magistrate was wrong in drawing adverse Inference from non-examination of the two attesting witnesses; that; assuming (but not conceding) that the said statements (Exts. 1 and 2) are not admissible under Section 24 of the Evidence Act, they are, however, admissible by virtue of Sections 17 and 21 of the Evidence Act; lastly, on the merits, that, on the facts and circumstances of the case, the conduct of the accused respondent amounted to obstruction punishable under Section 25 of the Orissa Sales Tax Act.
6. On the point of non-examination of the two attesting witnesses, the appellant's case is that the names of the said attesting witnesses had been mentioned in the prosecution report, but on the advice of the Public Prosecutor the attesting witnesses were not examined because they were suspected to have been gained over; further that it is also in evidence of P.W. 1. that Hiralal Agarwalla was an assessee, and, therefore presumbly did not come forward to give evidence against the accused respondent.
On the point of non-examination of the attesting witnesses, the learned Counsel for the State (appellant herein) relied on the decision of the Patna High Court in Ibrahim v. Emperor AIR 1935 Pat 95 Where the Public prosecutor refused to examine two persons as prosecution witnesses but produced them in court so that they might be examined, as court witnesses or as defence witnesses; but neither the Court nor the 5efen.ce lawyers wished to examine, them. In that context, the Patna High Court observed that the Public Prosecutor was not obliged to examine the said two persons as prosecution witnesses, if the Public Prosecutor had reason to believe that they would not support the prosecution case; nor was the Court bound to examine any person as a Court Witness, unless the evidence of such Person appears to be essential to the just decision of the case. In. the present case the State Appellant's case is that the Public Prosecutor found it proper not to examine the two attesting witnesses.
This argument, however, loses its force by reason of the principles laid down by their Lordships of the Supreme Court, following the earlier decisions of the Privy Council. The test, - whether a witness is material for the present purpose, - is not whether he would have given evidence in support of the defence: the test is whether he is a Witness essential to the unfolding of the narrative on which the prosecution is based; whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied if a material witness has been deliberately or unfairly kept back, then a serious reflection is cast on the propriety of the trial itself and the validity of the conviction resulting from it may be open to challenge : as regards the duty of a Public Prosecutor, the Privy Council made it clear that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused : and the duty of a Public Prosecutor is to represent not the police but the Crown and this duty should be discharged fairly and fearlessly and with a full sense of the responsibility attaching to his position; it is not the duty of the Public Prosecutor to call any witness who speak in his favour; the rule is not a technical one but founded on common sense and humanity Narain v. State of Punjab : 1959CriLJ537 ; Ram Ranjan Roy v. Emperor ILR 42 Cal 422 : AIR 1915 Cal 545.
Thus viewed, in my opinion, the learned Magistrate was right in drawing an adverse inference, against the prosecution from the fact of non-production of the attesting witnesses to the accused's statement Ext. 2 who are both material 1 witnesses, in the present context.
7. Coming to the question of admissibility of the accused's statements Exts. 1 and 2, the State appellant's case is that there is no evidence of threat held out to the accused respondent, before he maple the statements. On the aspect of threat, it appears from the evidence of P.W. 1, who Conducted the search in the premises of the accused, that in course of the search, the officer made the accused know the consequences of refusal and also about his powers as Assistant Sales Tax Officer, thus conveying a vague or veiled threat to the accused that if he did not do as he was asked to do by the officer, the accused would have to feel the consequence. The attitude of this officer is further corroborated, by the evidence of D.W. 1 stating in his examination-in-chief that the Assistant Sales Tax Officer wrote something in a paper, got the accused sign on that paper, and while leaving the shop he said 'I will see you' : that he (referring to the Tax Officer) did not read out die contents of the paper which the accused had signed. It is also in evidence, as P.W. 2, - who accompanied P.W. 1 in the search, - said, that the accused does not know how to read and write English; it is also significant that at the same fitting on June 12, 1959, namely, on the date of the incident, there were two statements taken of the accused - one Ext. 1 bearing no signature of the attesting witnesses while the other (Ext. 2) bearing the signatures of the attesting witnesses; furthermore, there is nothing to show that these statements were explained to the accused before he signed the documents.
There is no doubt about the legal position that the Assistant Sales Tax Officer who had conducted the search party for inspection, search and seizure at the accused's premises was a 'person in authority' within the meaning of Section 24 of the Evidence Act, indeed there is no statutory definition of he words 'person in authority' in Section 24, but generally speaking, d 'person in authority' within the meaning of Section 24 is one who is engaged in the apprehension, detention or prosecution of the accused or one who is empowered to examine him. In the present case, having regard to the nature of duties and powers of the Assistant Sales Tax Officer, who conducted the search party, there is no doubt that he was a 'person in authority' within the meaning of Section 24. The statements, made by the accused, do not appear, in the circumstances of the case, to be voluntary; it has long been established as a positive rule of criminal law, that no statement by an accused is admissibe in evidence against him unless it is shown by the Prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by person in authority : Ibrahim v. Emperor 15 CriLJ 326 : AIR 1914 PC 155 : Therefore, in my opinion the statements Exts. 1 and 2 are not admissible in evidence.
8. With regard to the contention urged on behalf of the State (appellant herein), that assuming but not conceding, that the said statements are not so admissible, even so, they are admissible under Sections 17 and 21 of the Evidence Act, - the ready answer to the point is that the statements Exs. 1 and 2 have not been proved as admission, because, in the absence of the attesting witnesses, who are material witnesses on the point not having been examined, the documents cannot be treated as proved. I do not accept the argument that, these documents having been admitted to have been signed by the accused, the contents thereof are admissible in evidence; this argument is unacceptable particularly because, in the present case, the accused who signed the documents does not know how to read or write English and furthermore the documents were not explained to him; therefore, the admission of mere signature on the documents, by itself, does not prove the contorts thereof. The best evidence, on this point, would have been that of the attesting witnesses who, however, have been kept back, and therefore the court was justified in drawing an adverse inference against the prosecution.
9. Coming to the case on merits, namely, as to the alleged obstruction, it was urged, on behalf of the State appellant herein, that the very fact, - that the accused sat on the iron treasury, - shows that he refused to open the almirah and obstructed the Assistant Sales Tax Officer making an inspection and search of the drawers. On this point, the prosecution report Ext. 2 shows that the charges against the accused under Col. 4 are as follows:
(a) For having refused to comply with the requirements made of him under Sub-sections (1) and (2) of Section 16 of the Orissa Sales Tax Act, 1947.
(b) For obstructing the officer (Sri R.N. Sahu, Asst. Sales Tax Officer) in making an inspection and search and. thereby committing an offence as contemplated by Clauses (f) and (h) of Sub-section (1) of Section 25 of the Orissa Sales Tax Act, 1947.
Under column 5 of the Prosecution Report the brief facts of the case are stated from which it appears that the charge against the accused was that he refused to produce the Ucchhanti accounts which were demanded of him for inspection; further that, when the officer proceeded to the boxes where the books of accounts were kept, the accused physically prevented him from touching the boxes and inspecting the accounts: and the accused also did not allow the officer to see his (accused's) stocks.
This, in substance, was the prosecution case against the accused. There is nothing, however in evidence to show that the accused refused to allow inspection of his stocks as alleged in the Prosecution Report. There are apparent inconsistencies in the prosecution case, as appears from the report of the Assistant Sales Tax Officer, P.W. 1 (Ext 3) to his immediate superior, the Commercial Sales Tax Officer, P.W. 3. The discrepancies in the evidence and in the report are numerous some of which have been referred to in the judgment of the learned Magistrate, which I need not repeat.
10. On the point of alleged obstruction, there is no consistent story in that P.W. 1 said that he proceeded to the almirah where the account1 books were supposed td have been kept, and that the accused immediately rushed to the place and sat one the iron treasury which was there; P.W. 2, who accompanied P.W. 1, said that the accused sat upon one iron box in front of the almirah and further that the accused told the search party that the box contained private things and so he would not show them. Thus, it is clear from the tenor of evidence, adduced at the trial, that the conduct of the accused only amounted to refusal of a request, made on behalf of the search party, to produce his (accused's) private accounts: mere non-production of accounts does not amount to obstruction. The word 'obstruction' means physical obstruction, that is, actual resistance or obstruction put in the way of discharge of the duties of the search party; the word implies the use of criminal force.
In the present case, the conduct of the accused was far from abusive or in any way insolent; in fact, the evidence of P.W. 2, the clerk, - who accompanied P.W. 1, - is that the accused did Hot rebuke or misbehave with the search party but he was telling 'I will not show. Do whatever you like'. The mere failure to comply with the request of the officer did not amount to such obstruction as contemplated under Section 25 of the Act: the word 'obstruction' seems to indicate that the Legislature contemplated the commission of some overt act of obstruction and did not intend to render penal mere passive conduct; it is not the prosecution case that the accused barricaded his doors or assaulted the officer or took any active steps to resist the inspection, search and seizure at the accused's premises. In the present case, there is no evidence of threat or violence made in such a way as to prevent the officer from carrying out his duty nor any evidence of any aggressive or menacing attitude on the part of the accused.
The accused respondent was within his rights not to give inspection of his private accounts with which the search party was not in any way concerned. It is significant that, - although P.W. 2 said that at the time of incident there was many persons present at the shop, - riot a single disinterested person has been examined in support of the prosecution ease with regard to the alleged obstruction by the accused respondent. On this point, therefore, I hold that there was no obstruction by the accused to the search party making inspection, search or seizure according of law.
11. On the charge of alleged refusal by the accused to comply with the requirements made of him under Sub-sections (1) and (2) of Section 16 to produce accounts or documents relating to the stocks of goods etc, no charge is maintainable unless the prosecution proves that the boxes contained books of accounts relating to the business covered by Section 16(2) of the Act The accused respondent had presumably documents relating from the business as also his private accounts; the accused was entitled to withhold the documents of the latter type arid the Officer was not authorised in law to seize such private documents; the burden of proof cannot he said to he on the accused to show that the documents which he did not agree to give inspection of were of the first category, namely, that they related to the business; the burden of proof initially rests with the prosecution, and it continues to rest on the prosecution in spite of the fact that the accused had not agreed to give inspection of the books or even if he had removed his private accounts not connected with the business. In re, Bhupalem Venkata Subbaiah 1960-11 STC 850 at p. 855 (Andh Pra).
12. In this view of the case the charges against the accused respondent under Sections 25(1)(f) and (h) of the Orissa Sales Tax Act 1947 fail. The decision of the learned Magistrate, - acquitting the accused respondent after giving him the benefit of doubt, - is accordingly upheld. The Government Appeal is, therefore, dismissed. The bail bond be cancelled.