State of Himachal Pradesh vs Usha

Bhawani Singh, J.—The State of Himachal Pradesh has assailed, by this appeal, the judgment of Sub-Divisional Judicial Magistrate, Kangra, in case No. 261-1/83, 120-UJ/84, thereby acquitting the accused for an offence u/s 61(1)(a) of the Punjab Excise Act, 1914, as applicable to the State of Himachal Pradesh.

The accused, Smt. Usha, widow of Shri Pritam, was challaned u/s 61(1)(a) of the Punjab Excise Act, 1914 after she was apprehended with 13 kg. of lahan on 8-9-1983 by Sucha Singh, Assistant Sub-Inspector of Police and Nain Sukh, Constable No. 235 when on investigation they received a secret information at a place known as Mataur-Bagli junction.

Aforesaid involvement of the accused ultimately ended in acquittal. This is how the State has come up in appeal against the judgment.

The learned Counsel for the parties has concentrated their arguments on the application of Section 100 and Section 165 of the Code of Criminal Procedure. I proceed to deal with the submissions made in this respect at length by the learned Counsel for the parties.

Shri R.K. Sharma, learned Counsel appearing for the accused, has contended that the prosecution has not proceeded in accordance with the provisions of Sections 100 and 165 of the Code of Criminal Procedure; they being mandatory in nature, the learned Counsel submits, non-compliance as such, of these provisions has resulted in making the whole search nugatory. It is also contended that the statements of Shri Arvind Kumar (P. W. 1) and Shri Sucha Singh (P.W. 4) are absolutely wrong and, therefore, no credence can be placed on the testimony of these witnesses. These assertions of the learned Counsel for the accused have been assailed by Shri M.S. Guleria, learned Assistant Advocate General.

Section 100(4) of the Code of Criminal Procedure requires that before making search under Chapter-VH of the Code of Criminal Procedure, 1973, 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 of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or all of them so to do.

The provisions of the Section as referred above are mandatory in nature and have a salutary object. In order to repose confidence in the mind of the public or the person against whom this provision is invoked, it is essential that the officer or any other person proceeding u/s 100 of the Code of Criminal Procedure, before doing so, in fact, associates two or more independent and respectable inhabitant. These witnesses must belong to the locality where the place to be searched is situate and in the absence of the availability of such inhabitants, or exhibition of unwillingness on their part, resort can be had to any other locality; but, they have to be associated. The provision further requires that the officer conducting the search May issue, an" order in writing to them or any of them to be the witnesses to the search. These provisions are quite clear and mandatory. Non-compliance of the same not only vitiates the search in the. Absence of clear acceptable explanation, but also make the whole investigation, based on such a faulty search, nugatory.

Applying'' these principles to the facts of this case, Shri Sucha Singh, A.S.I. (P.W. 4) and Nain Sukh (P.W. 2), did all this with Shri Arvind Kumar (P.W. 1), who met them while they were conducting the investigation in some other case. They formed a raiding party and apprehended the accused while caning the incriminating Article (Lahan) on her head. After taking into possession the same (Ex. P.W. 1/B), First Information Report (Ex. P. W. 3/A), on the basis of Ruka (Ex. P. W. 4/A) was lodged.

Shri Sucha Singh, A.S.I. (P.W. 4), states that an effort was made to. Associate independent witnesses for the search but they could not be found. He is supported by Nain Sukh (P.W. 2). This explanation is not at all convincing. No reason has been given a social they faced such a difficulty in finding out witnesses at that place which does not appear to be a secluded one. As stated by them that the basis of the raid was secret information received by them, so they could have very easily and conveniently associated independent and respectable witnesses while conducting the search. The result is that it is not possible to believe what they say and the only conclusion which can be drawn, in these circumstances, is that the explanation given on this account is not at all convincing and the provisions of Section 100 of the Code of Criminal Procedure are violated and the search is, therefore, badin law.

Adverting to the second submission, perusal of Section 165(1) of the Code of Criminal Procedure, Shri Sucha Singh (P.W. 4) has admitted that before proceeding to make investigation in this matter, no record indicating the reasonable ground to; conduct, the search was recorded or any information on these lines sent to the police station before conducting the raid in the house of the accused. This is a very big snag in the investigation of this case. The principle behind Section 165 of the Code of Criminal Procedure, in my opinion, is of fundamental importance. The purpose behind this provision is to safeguard the. Valuable rights of the citizens not to have their castles raided by police. Officers on ill-founded ideas and thereby involve them in frivolous prosecutions, social ridicule and harassment at the hands of unscrupulous public officials. Therefore, in order to save citizens from all such possible consequences, it is required that before proceeding ahead to investigate the matter, they must have some basis, a reasonable ground for doing so. Nothing, suggesting compliance of Section 165 of the Code of Criminal Procedure, has been there nor has it been brought to my notice by the learned Assistant Advocate General, appearing for the State.

The conclusion, therefore, is that the entire search is without jurisdiction and vitiates the proceedings against the accused as has been rightly done by the learned trial court. Even otherwise, on facts as well, there is no reason to take a view different from the one already taken by the trial court.

The result, therefore, is that the appeal fails and is accordingly dismissed. The bail bond and surety bond, if any, executed by the accused at any stage of the case are hereby cancelled.