Gurnam Singh vs State of Punjab

A.S. Bains, J.—By judgment and order dated 7th October, 1977, the Judicial Magistrate I Class Amritsar, convicted and sentenced the Petitioner u/s 61(1)(c) of the Punjab Excise Act to undergo rigorous imprisonment for nine months and to pay a fine of Rs. 2,000/ or in default of fine, to undergo further rigorous imprisonment for lour months. The learned Additional Sessions Judge, Amritsar, on appeal maintained the conviction and sentence of fine, but reduced the sentence of imprisonment from nine months to six months. Hence the present revision.

2 According to the prosecution story, on receipt of a secret information, H.C. Gurdip Singh, on 11th January, 1976, formed a raid party consisted of Dev Raj, Excise Inspector and other police officials and conducted raid at the bouse of the Petitioner in village Mustafabad and apprehended him red banded when he was feeding fire under the still. The still was cooled and dismantled and its components were taken into possession. The case registered against the Petitioner. He was prosecuted and convicted and sentenced as aforesaid.

At the trial the Petitioner denied his complicity in the crime and pleaded false implication. He gave his own version regarding the incident which is as under:-

I am innocent I was involved falsely by Gurdip Singh Head Constable, who purchased mutton from my shop about three kilos, but did not make payment inspite of requests. I was also challaned u/s 107/151, Code of Criminal Procedure at the instance of my neighbour Hardev Singh. I am a meat seller." In defence he produced Bansi Lal (D.W. 1)

I have perused the evidence. No doubt, the prosecution story as given in the earlier part of the judgment is supported by Head Constable Gurdip Singh and Dev Raj, excise Inspector, but their testimony does not inspire confidence. The Petitioner is running a meat shop near the Police Post Versa and his version seems to be probable, because it is not uncommon for such police official''s to demand articles such as meat free of cost. Moreover, his version is supported by D.W. 1 Bansi Lal.

There is nothing against Bansi Lal. 6. There is legal intimity in the prosecution case, also, that is, the provisions of Section 100, Criminal Procedure Code, are not complied with Although the raid was conducted in the house of the Petitioner in village Mustafabad during day time, yet no Independent person from the locality was associated in the search of the Petitioner''s house. Head Constable Gurdip Singh has not certified that no such person was available in the locality. Section 100(4), Criminal Procedure Code, is mandatory and it is in the following terms: -

100 (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or any other locality if no such inhabitant of the locality is available or is willing to be a witness to the search, to attend and witness the search and may issue order in writing to them or any of them so to do.

From the (sic)are reading of this provision it is plain that before making as arch, the officer concerned it bound to call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate. However it no such inhabitant of the said locality is available or is willing to be witness to the search, then he shall call upon two or more independent and respectable inhabitants of any other locality, to attend and witness the search and may issue an order in writing to them or any of them so to do. But, in the present case no attempt has been made by the Head Constable to associate two or more independent and respectable inhabitants of the village. Distilling illicit liquor is a serious offence and in order to inspire confidence it is incumbent upon the officers of the raid party to associate some independent and respectable inhabitants of the locality in which the place is to be starched is situate. May be that sometimes independent person may not be available, but then that fact is to be recorded by the officer concerned. In the present case, the search took place in the village and and there is nothing on the record to show that no independent person was available. The authority Darshan Singh v. State of Punjab 1974 Ch. L.R. 321, relied upon by the appellate Court is not applicable to the facts of the present case. There the raid was organised in an open space in the fields and it was not a case of house search.

For the reasons recorded I am of the considered view that it is not safe to maintain the conviction of the Petitioner. Accordingly he is given the benefit of doubt and acquitted. His conviction and sentence as recorded by the Courts below are set aside He is on bail. His ball bonds shall stand discharge. Fine, if paid shall be refunded to him.