Joginder Singh vs State of Punjab

Ajit Singh Bains, J. (Oral)

The petitioner was convicted for a offence under section 61(1)(c) of the Punjab Excise Act and sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 5,000/, in default to undergo further rigorous imprisonment for 6 months by the learned Judicial Magistrate Ist Class, Amritsar. On appeal his conviction and sentence were upheld by the learned Additional Sessions Judge, Amritsar, hence this revision against his conviction and sentence.

The case of the prosecution as set up at the trial was that on 13th October, 1980, PW Harmel Singh ASI, PW Samund Singh Head Constable and other police officials went for patrolling and when they reached near village Dhulka, they received a secret information against the petitioner and the same was sent to Police Station, Jandiala, for registration of a case against the petitioner. They also joined one Partap Singh from village Dulka. Then the police party went to the house of the petitioner in village Jharu Nangal and found the petitioner distilling illicit liquor by means of a working still. At the relevant time 40 Kgs of Lahan was boiling in the drum, which was used as a boilder and 700 M.L. of liquor had been distilled in the receiver bottle. The petitioner was arrested and the components and parts of the working still were taken into possession including the Lahan and 700 ML of distilled liquor.

At the trial the petitioner denied the prosecution version, but did not produce any evidence in defence.

ASI Harmel Singh, HC Samund Singh and Excise Inspector Subhash Chander have supported the prosecution version as given in the earlier of this judgment. Partap Singh was given up as won over. The testimony of aforesaid witnesses dose not inspire confidence. They had entered the house of the petitioner without joining any person from the locality. It was incumbent upon the raiding party to join atleast two inhabitants of the locality before entering the house of the petitioner, but they did not do so, nor did they make any attempt in that direction. Partap Singh, who was joined from another village was also not produced. It is true that the testimony of the official witnesses is as good as of other witnesses, but in the circumstances of the present case when the recovery is made from the house of the petitioner without joining any body from the locality, as per the procedure laid down in Section 100 subsection (4) of the Code of Criminal Procedure no implicit reliance can be placed on their testimony. It is provided in the abovesaid Section that before the police enters the house of a citizen, it is incumbent upon them to associate with them atleast two inhabitants of locality and if they are not available, from the neighbouring locality and if none of them is prepared to join then the police officer is to record that fact and even the person who refused to join in the search he can be prosecuted under Section 187 of the Indian Penal Code. But in the present case it is in the evidence of ASI Harmel Singh PW and HC Samund Singh that no attempt was made to join and independent person from the locality.

Since the mandatory provisions of law have been violated conviction and sentence awarded by the Courts below cannot be sustained. In the result this petition is allowed and the conviction and sentence recorded by the Court below is set aside. Fine if paid shall be refunded to the petitioner.