D.P. Desai, J.
1. A Division Bench consisting of our learned brothers A. N. Surti,. J., who is one of us now, and A. M. Ahmadi, J.. has referred a question of considerable importance arising frequently in cases under the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the Act'). This question arises in cases where the investigating agency which lays a trap, which trap, according to the prosecution, has succeeded, carries out the demonstration or experiment with the aid of phenolphthalein powder which is applied to the marked currency notes and, as a result of the said experiment, after the trap, the fingers or the clothes of the accused or any part of his body are dipped in a solution of sodium bicarbonate and the result found is the turning of the solution which was white into pink. The question is, whether that solution, which has turned pink, must be preserved by, the investigating agency so as to enable its production before the Court trying the accused when necessary or whether the investigating agency with impunity can destroy that solution. If the answer to that question is that the investigating agency must preserve the solution, the next question is what would happen on the failure or the omission of the investigating agency to do so. These two questions, in our opinion, require examination and answer by this Bench.
2. The facts giving rise to these questions may be stated briefly. The appellant in this appeal, original accused No. 1, together with another, was charged with having demanded and accepted a bribe of Rs. 1,000/- for a new telephone connection while the appellant. was acting as Sub-Divisional Officer (Telephones) in Valsad. He along with the co-accused is alleged to have accepted an amount of Rs. 1,000/- as bribe for the aforesaid illegal gratification on February 14, 1974 at Valsad. At the end of the trial, the appellant came to be convicted under Section 5(2) read with Section 5 (1) (d) of the Act and Section 161 of Indian Penal code, where as his co-accused was acquitted. He has been sentenced to rigorous imprisonment for two years and a fine of Rs. 2,000/- with further R. 1. of three months in case of default.
3. According to the prosecution at the time of the trap, experiment to detect phenolphthalein powder on the hands of the appellant was carried out and the solution which was made of sodium bicarbonate turned pink on dipping the hands of the appellant therein. As against this, the case of the appellant was that his hands were not dipped in the aforesaid solution. No .attempt was made to get the solution produced in the trial Court. In course of cross-examination of the investigating officer in this case, it was brought out that the solution which turned pink as a result of the aforesaid experiment (as per the prosecution case) was not preserved.
4. whilst arguing this appeal before the Division Bench, reference was made on behalf of the appellant to Raghbir Singh v. State of Punjab, AIR 1976 SC 91 and a Division Bench Judgment of this High Court rendered by D. A. Desai and M. C. Trivedi, JJ. on November 21, 1975 in Criminal Appeal No. 408 of 1975 (Rasiklal Narmada shanker Bhatt v. State of Gujarat). In the former case, the Supreme Court made the following observations in paragraph 11 :
'We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked currency notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is sometimes of a dubious character for the purpose of deciding the fate of the public servant It is but meet that science-oriented detection of crime is made a massive programme of police, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only, thereby discouraging liberal use of scientific research to prove guilt'.
The Supreme Court referred to an earlier decision reported in Som Prakash v. State of Delhi, AIR 1974 SC 989. In the earlier criminal appeal (supra), the Division Bench of this Court made the following observations in the context of peculiar facts of that case, one of which was that the evidence of Rajendrakumar lent corroboration to the evidence of the accused and contradicted the evidence of the complainant. There, the defence of the accused was that he was using a ball pen with red ink just before the trap and some stain of that ink on his finger may have made the solution pink. In this connection the Division Bench was led to make the following pertinent observations bearing upon the need for preserving the solution:
'Now, it is quite possible that if the Court was given an opportunity to examine the solution and export evidence was led, it would have been found out whether the solution turned light pink because of emersion of phenolphthalein powder or the stains of red ink and the Chemical Analyser could have revealed it. It to surprising that this solution is not preserved We have threefold objection to the destruction of this solution. Panch No. 1 is a non-matriculate. We would presently point out that Panch No. 2 is one quite known to the comptainant Jafarkhan says that he had prepared the solution of sodium bicarbonate in normal saline. We fail to see how this non-matriculate understood what this sodium bicarbonate is. This apart if that solution turned light pink, it could have been preserved and sealed and could have been sent to the Court as piece of evidence corroborating the oral testimony, It could have been sent to the Chemical Analyser for its expert opinion whether it was solution of sodium bicarbonate. it is well known that even small crystal of potassium permanganate turn the normal saline into pink colour, dark light or dark pink colour. In this state of scientific knowledge it is un usual for the prosecution to keep this evidence away from the Court. If the solution did turn Pink because of the existence of phenolphthalein powder it has to be preserved in a sealed bottle and submitted to the Court as a piece of evidence. It is all the more worth while in a given case to send it first to the Chemical Analyser and obtain expert opinion on the subject. Even it is unfair to the accused in that the accused could as well challenge that what is trotted out to the Court as a solution of sodium bicarbonate is normal saline or it is something like red pink The accused in anxiety may say that the solution may have turned light pink because of the stains of red ink in his hand But why does the prosecution keep solution away from the Court What it is afraid of a piece of evidence is destroyed with impunity. Jafarkhan every time stated that he threw away the same as if it was his private property. If in fact the tips of fingers of accused when dipped in solution of sodium bicarbonate turned light pink, it was necessary to preserve it because the Court would have looked at it and no expert evidence was necessary to say whether it was red pink blue or green or otherwise ...............Therefore we do not approve of the conduct of the prosecution in destroying this solution. This evidenge deprives the circumstantial corroboration to the direct testimony given in the Court. It is open to verification. Therefore, in the absence of that evidence, in view of the infirmity pointed out in the oral evidence it is, not possible to believe that Tribhovandas gave currency note which the accused handled.'
5. Coming to the first part of the question, the need for preservation of the solution which turned pink cannot be overemphasized. 'It is a corroborative piece of evidence and the prosecution by resorting to a scientific method seeks to bring Into existence a piece of evidence which is corroborative in nature. In fairness, therefore, the prosecution as well as the investigating agency are required to preserve this solution. There can be no difficulty an regards, this conclusion because of the weighty observations made by the Division Bench of this Court with while we find ourselves in agreement. In fact, even the investigating agency. In order to be fair to the accused should see that this solution is kept in a duly sealed bottle and preserved so that whenever its production before the Court is necessary, the same can be produced. As observed by the Division Bench it would be worthwhile to get the solution analysed chemically prior to sending the charge sheet with a view to get the opinion of the Chemical Analyser whether it contained sodium bicarbonate and phenolphthalein, or some other chemical substance.
6. Mr. Chhaya for the State could not show to us why the investigating agency can have the choice of destroying this solution with impunity. In fact, it may well be said that by destroying this solution, the Investigating agency is destroying a relevant piece of evidence. To this extent, it can be said that the investigating agency has been unfair to the public servant who has been trapped.
7. Mr. Chhaya, however, pointed out that on November 29, 1968, the Director of Anti-Corruption Department of this State had issued a circular dispensing with the need for preservation of this solution an the ground that, on account of certain chemical process, the pinkish colour of the solution preserved disappears and the solution becomes colourless. He also gave the reason that difficulties are experienced to explain that position to the Court and it was probable that the case may suffer thereby. He pointed out that the practice of not preserving the solution has started on account of this circular. That may be so. But then, we are of the opinion that this practice must now be put to a stop as early as possible if the investigating agency wants to avoid the charge of being deliberately unfair to the public servant in a given case. We fail to understand how the disappearance of pinkish colour of solution could create any difficulty even if it is assumed that the add colour disappears after a lapse of time. Ex facie, we are not prepared to believe that the disappearance of the colour will also result in disappearance of the chemical contents of the solution, namely, sodium bicarbonate and phenolphthalein powder. If any difficulty is experienced, it is well for the Director to issue direction to the investigating officers to put the solution in two bottles, seal them and send one of the bottles for opinion to the Chemical Analyser before it was too late so that there would be additional evidence of expert as to the contents of the solution which was used for the experiment in question. In answering the questions referred to us, we do not propose to attach any importance to this circular. It only explains the prevailing practice. Except this, Mr. Chhaya, as stated by us earlier, could not point out to us what justification would be there for destruction of solution with impunity even though it was a piece of evidence in this case. We, therefore, see no hesitation in answering the first part of this question viz. that the solution of sodium bicarbonate used in the experiment with a view to ascertain the presence of phenolphthalein powder on the person of the accused or on his garments or on any other thing handled by him must be preserved.
8. The next question is what would he the effect of non-preservation of this solution in a given case. Now, it is obvious that non-preservation of this solution in a given case would mean that a relevant piece of evidence has been withheld from the Court and it is at this stage that we must make ourselves clear as regards the character of this question. The question essentially pertains to the domain of appreciation of evidence and not with standing a laborious effort made by Mr. Thakore for the appellant before its to lay down a yardstick by which all cases can be Judged, we are not disposed to do so because It will hedge in the discretion of the trial Judge in the discussion and appreciation of evidence. The contention of Mr. Thakore was that non-preservation of this solution in a given case denies to the accused the opportunity of getting it chemically examined during trial, and demonstrating to the Court that the solution contained pure water or that it did not contain Phenolphthalein powder. His further submission was that, in absence of this opportunity, serious prejudice would be caused to the accused and eventually it would result in denial of a fair trial to him. As a necessary sequel to this contention, Mr. Thakore urged before us to lay down that non-preservation of the solution by the investigating agency must result in acquittal of the accused. To put it bluntly, the contention is that, once the solution be required by the defence before the Court and the investigating agency declares that it did not preserve it, the Court must shut its eyes, close its minds to all the evidence on record and, by the yard-stick by which Mr. Thakore wants us to act, must acquit the accused irrespective of the quality of evidenceled. against him. We see no reason in law or in principle to lay down such a proposition as it appears to us, on the face of it, untenable.
9. On the contrary, the correct approach in such circumstances would be to lay down the proposition so well known and so often applied to appreciation of evidence, namely, that, in a given case, the Court, on account of non-preservation of such solution and non-production of any other evidence as to its character as found after its analysis after the trap, may raise an adverse inference against the prosecution and may as well come to the conclusion that it would be hazardous to convict the accused In the particular circumstances of the case before it. All the same, before reaching such a conclusion, the Court, in duty and in law, is bound to appreciate the evidence, assess its credibility rather than shut its eyes to such evidence. In the circumstances of a conceivable case, it may be open to a Court to say that the evidence led before it as regards the passing of currency notes between the complainant and. the public servant trapped is of such a character that it would not. be accepted by it unless It is corroborated by this corroborative 1piece of evidence. The question essentially is one, pertaining to the domain of appreciation of evidence and, there fore, it in open to the defence in a given case to urge before the Court that necessary adverse inference, looking to the circumstances of the case, may be drawn against the prosecution. Even in came of drawing of an adverse inferenee, the Court has to put that inference in the scale along with all the facts found by it on other evidence and then reach its conclusion as to the guilt or the innocence of the accuses it must be made clear, however, that non-preservation of the solution and its non-production when directed by the Court in a given, case may lead the Court to find that the investigating agency was dishonest or unfair to the public servant. As to what would be the effect of this finding on other evidence led in the case would depend on the facts. and circumstances of each case and no general proposition of law can be laid down. The need for use of phenolphthalein powder in cases of this type has already been stressed by the Supreme Court in Raghbir Singh's case (supra). The investigating agency should bear this in mind before taking the hazardous step of dispensing with the experiment with this solution altogether.. The Supreme Court has stressed upon the employment of science-oriented detection of crime in addition to the method of proof of swearing by traditional evidence only.
10. Mr. Thakore also urged that it is the bounden duty of the prosecution to bring the preserved solution before the Court because it is an important piece of evidence. When it was pointed out to him whether such a corroborative piece of evidence would be evidence essential to unfolding of the prosecution. case, he frankly admitted that it would not be so. It was also urged that if the bottle containing the solution was brought before the Court with its seal, the Court can see the colour of the liquid in that solution And then appreciate the evidence in that light. We do not think we should express any opinion on this contention one way or the other, because we do not know for certain that the colour of the solution found as a result of the experiment would always remain there and would not change What we must point out, however, is that these contention pertain to the domain of appreciation of evidence and we have already pointed out that would not be possible to lay down a yard-stick to govern all the cases so that we can decide a case by the touch of that yardstick only where the solution is not preserved. We must also emphasize as was done by the Division Bench in the earlier appeal that the investigating agency in order to be fair to the public servant concerned should get a part of that solution chemically examined with a view to obtain unimpeachable evidence before the Court as regards the contents of the solution which was used for the purpose of the experiment, After all, an investigating agency is expected to be as fair to the alleged culprit as the prosecution when the trial commences before the Court. We may say that the investigating agency hereafter would do well to take into consideration those observations and thereby avoid the hazard of an acquittal in a given case. We must hesitate, however, to add that these observations should not be construed as having an impact one way or the other upon cases pending before the Courts because, an account of the practice which has been attributed to a circular issued by the Head of a Department, the solution is not preserved. We, therefore, do not propose to say that, in all such cases, the Court must raise an adverse inference, or come to the conclusion that the investigating agency has been unfair to the accused. The observations made in this judgment, in the nature of the things, cannot be utilized in such cases because of something which has come into existence not on account of any dishonesty on the part of the investigating agency but on account of a direction issued by the idea of the Department. Hereafter, however, it is but meet that the investigating agency should bear in mind the observations made in this judgment.
11. Our answer, therefore, to the question referred to this Bench is as under:
It is necessary for the investigating agency to preserve the solution used for the experiment as regards detection of Phenolphthalein powder on the person of the accused or on his clothes or on anything that he has touched. We further lay down that in case of failure or omission of the investigating agency to preserve such solution, it is open to, the Court to raise an inference adverse to the prosecution at the trial, depending upon the facts and circumstances of each case, and to determine, upon the impact of that inference on the other evidence before it.
12. In view of the aforesaid answers to the questions referred to this Bench, we now direct that the matter will go back to the Division Bench for disposal on merits.
13. Answer accordingly.