The Evidentiary Consequences of Non-Production of the Malkhana Register in Indian Criminal Trials

The Evidentiary Consequences of Non-Production of the Malkhana Register in Indian Criminal Trials

Introduction

The malkhana register—a stock register maintained in every police station for case property—constitutes a critical link in the chain of custody. Courts across India have repeatedly confronted situations where this register was not produced during trial, forcing them to determine whether such omission vitiates the prosecution case. This article analyses that question through an examination of statutory provisions, leading Supreme Court and High Court authority, and competing evidentiary doctrines, with particular focus on narcotics prosecutions under the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

Statutory and Regulatory Framework

Code of Criminal Procedure, 1973 (“CrPC”)

While the CrPC does not expressly mandate production of the malkhana register, it imposes duties of proper custody upon investigating agencies (ss. 451–457) and authorises courts to call for any document necessary for just decision (s. 165). Police diaries (s. 172) provide an ancillary record but are not a substitute for the stock register.

NDPS Act

Sections 52, 52-A, 55 and 57 lay down stringent procedures for seizure, safe-custody and destruction of contraband. Although these sections do not expressly refer to the malkhana register, they presuppose a documented chain of custody; failure to establish it may undermine statutory presumptions under ss. 35 and 54.

Police Manuals & Standing Orders

State Police Rules (e.g., Delhi Police Standing Order 223 and the Arms Malkhana Rules cited in Manjit Singh v. State[1]) uniformly direct immediate entry of all seized articles in the register, periodic verification by senior officers, and production of the register in court when demanded.

Judicial Approaches to Non-Production

Supreme Court Jurisprudence

  • Materiality where entire contraband not produced. In Vijay Jain v. State of M.P.[2] the Court set aside conviction because neither the bulk narcotics nor reliable link evidence (including malkhana register) was produced. The decision stressed that “material evidence” is indispensable, and that procedural safeguards under s. 52-A NDPS Act are meaningless without documentary proof of custody.
  • Best evidence rule. Jitendra v. State of M.P.[3] reiterated that the “best evidence” to prove seizure is production of seized material; absent that, cogent documentary chain—including the register—is imperative. The Court drew an adverse inference under Illustration (g) to s. 114 Evidence Act when the prosecution offered no explanation.
  • Holistic evaluation. In State of Orissa v. Sitansu Sekhar Kanungo[4] the Court upheld acquittal where the register was withheld and the seizure-list itself bore the FIR number, suggesting post-factum fabrication. The decision accepts that non-production is not per se fatal, but becomes decisive when coupled with other infirmities.
  • Directory versus mandatory dichotomy. Although State of Rajasthan v. Gurmail Singh[5] recognised s. 57 NDPS Act as directory, it nevertheless treated the unexplained absence of the register and seal samples as fatal to “link evidence.” The Court thereby drew a functional distinction: statutory provisions may be directory, but evidentiary gaps impair the burden of proof beyond reasonable doubt.

Divergent High Court Views

Analytical Synthesis

1. Evidentiary Weight of the Register

The register is neither a statutory prerequisite for admissibility nor a substantive piece of inculpatory evidence. Its probative value lies in corroboration of safe custody. Courts, therefore, examine whether other evidence—such as testimonies of the Moharrir-Head Constable, seizure memos, seal packets and forensic timelines—collectively discharge the burden. Where those links are intact, some courts treat the omission as curable; where they are weak, the omission becomes fatal.

2. Interaction with the Best Evidence Rule (ss. 91–92 Evidence Act)

Defence frequently invokes ss. 91–92 to argue that once existence of a document (the register) is shown, oral evidence is inadmissible. However, these provisions apply only when the “terms” of a transaction reduced to writing are in issue. Safe-custody of articles is a fact in issue, not a contractual term. Accordingly, courts (e.g., Siddiqua) admit oral evidence, yet evaluate its weight vis-à-vis the missing document.

3. Adverse Presumption under s. 114(g) Evidence Act

Where the prosecution has control of the register but offers no explanation for non-production, courts often draw an adverse inference that the document, if produced, would have favoured the accused (as in Sitansu Sekhar Kanungo). The presumption is discretionary and triggered primarily when the defence raises a plausible allegation of fabrication or tampering.

4. Chain of Custody and Constitutional Fair-Trial Norms

The Supreme Court in State of Punjab v. Balbir Singh[10] and Gurbax Singh v. State of Haryana[11] emphasised strict compliance with procedural safeguards as a facet of Articles 20 & 21. Failure to maintain transparent custody records, evidenced by the register, undermines those guarantees and may render the prosecution unsafe.

5. Practical Considerations

Police stations often store bulky or perishable items; digital photography and inventories under s. 52-A NDPS Act serve pragmatic needs. Yet, unless the register—or its certified electronic copy—is forthcoming, courts remain sceptical about the integrity of those inventories. Technological solutions must, therefore, complement rather than replace traditional documentation.

Guidelines Emerging from the Case Law

  1. Prompt Entry and Certification: Investigating officers should ensure that every seizure is entered instanter in the register, countersigned by a supervisory officer, and referenced in the seizure memo.
  2. Certified Copies for Court: Certified extracts of relevant entries should accompany the charge-sheet to obviate later disputes.
  3. Explanation of Absence: Where the original register cannot be produced (e.g., destroyed in fire, transferred to Record Room), secondary evidence under ss. 63–65 Evidence Act should be tendered with a sworn explanation.
  4. Independent Verification: Production of the register should ordinarily be corroborated by the Moharrir-Head Constable and an investigating officer uninvolved in the seizure.
  5. Judicial Scrutiny: Trial courts should record in orders framing charge that they have examined chain-of-custody documents, flagging deficiencies early to prevent delayed acquittals.

Conclusion

Indian jurisprudence has not elevated the malkhana register to the status of a mandatory statutory document; nonetheless, its evidentiary utility is undeniable. The Supreme Court’s decisions in Vijay Jain and Jitendra illuminate that, especially in grave NDPS prosecutions, failure to produce the register—when coupled with other lapses—can be fatal. High Courts oscillate between a strict and a pragmatic approach, but the trend leans towards demanding a robust chain of custody. Prosecuting agencies would therefore be well advised to institutionalise meticulous documentation and prompt production of the register, lest avoidable omissions erode otherwise meritorious cases.

Footnotes

  1. Manjit Singh v. State, Delhi High Court, 2014.
  2. Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC 527.
  3. Jitendra & Anr. v. State of M.P. (2004) 10 SCC 562.
  4. State of Orissa v. Sitansu Sekhar Kanungo, (2003) 1 SCC 313.
  5. State of Rajasthan v. Gurmail Singh (2005) 3 SCC 59.
  6. Siddiqua v. Narcotics Control Bureau, Delhi High Court, 2006.
  7. Pooran Singh v. State of Uttarakhand, 2013 SCC OnLine Utt 3387.
  8. Gautam Prasad Satnami & Anr. v. State of Chhattisgarh, 2007 SCC OnLine Chh 55.
  9. Malkiat Singh v. State of Punjab, 2008 SCC OnLine P&H 918.
  10. State of Punjab v. Balbir Singh (1994) 3 SCC 299.
  11. Gurbax Singh v. State of Haryana (2001) 3 SCC 28.