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Report No. 25

13. Proposed self-contained provision preventing production, etc., of records.-

The third solution1 will, in our opinion, achieve the main objectives in view2. A self-contained provision may be inserted after section 509, Cr. P.C. which, while not preventing the summoning of the officer concerned as a witness, will bar-

(a) the production of the records on which the report is based; and

(b) except with the permission of the Master of the Mint, etc.,-

(i) the giving of evidence derived from such records;

(ii) the disclosure of the nature and particulars of the tests on which the report is based.

This solution will not be a serious departure from the existing law on the subject, because section 123 of the Indian Evidence Act already prevents the giving of evidence derived from unpublished official records. The only additional provision will be that, notwithstanding section 162 of that Act2, the officer concerned cannot be summoned to produce the records on which his report is based. But subject to this, the officer concerned will be liable to be examined as a witness in court like any other person.

We have already explained4 that the production of the records in Court may be fraught with certain dangers. On the analogy of section 123 of the Indian Evidence Act, it may be provided that with the permission of the Master of the Mint, etc. (if necessary the permission of the head of the Department may be required) evidence may be given from the records on which the opinion of the officer concerned is based. A consequential amendment will be necessary in section 510 for omitting reference to officers of the Mint from that section.

Compared with section 25 of the Drugs Act, 1940, the new provision suggested by us is a mild one. It will be noticed that in the draft amendment proposed by us,5 the new section 509A will apply only to such gazetted officers as the Central Government may, by notification in the Official Gazette, appoint. The object is that the privilege conferred by the section should apply to high officers who could be trusted to make a report with a due sense of responsibility.

The rights of the individual are being affected to the minimum possible extent. In any case, the new provision can be justified on the ground that the security of the State and its financial stability are primary and overriding considerations which must prevail over the rights, if any, of the individual. In this connection, reference may be made to a recent case of the House of Lords6 where the famous dictum of Lord Parker in the Zamora case7 was cited with approval:-

"Those who are responsible for the national security must be the sole judges of what the national security requires. It will be obviously undesirable that such matter should be made the subject of evidence in a court of law or otherwise discussed in public.".

1. Para. 9(iii), supra.

2. Para. 7, supra.

3. It is considered unnecessary to use the formula 'notwithstanding, etc.' in the actual amendment.

4. Para. 6, supra.

5. See App I, section 509A.

6. Chandler v. Director of Public Prosecutions, (1962) 3 WLR 694 (714, 722).

7. (1916) 2 AC 77 (107).



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