State of Punjab vs Deepa Masih

S.D. Bajaj, J.

On the basis of secret information allegedly with him SI. Hoshiar Singh of Police Station Dhariwal in Gurdaspur district of Punjab State found the accused distilling illicit liquor by working a still in the fields of Nihal Chand in village Kaler Kalan almost around midnight on November 22, 1982. Recovery is supported by Investigating Officer Hoshiar Singh P.W, 1 and H. C. Narinder Singh P.W. 3 Excise Inspector Parshotam Dass P.W. 2 stood by his testing report of lahan Exhibit PD.

Independent witness of the locality Jaswant Singh was not examined by the prosecution to support it case. While appearing in defence the witness gave a lie to the prosecution case and stated that nothing was recovered from the accused by the Investigating Agency in his presence and that S.I. Hoshiar Singh obtained his signatures on the recovery memo inside the precincts of Police Station, Dhariwal. D.W. 1 Gulzar Singh also stood by the version brought on record by Jaswant Singh and stated that the accused was arrested by the police from his native village Deepewal in his presence. Nihal Chand, owner of the field wherein still for distillation of illicit liquor was allegedly being worked by the accused was not joined in investigation at all. Upon these facts learned trial court recorded acquittal of the accused vide its impugned judgment dated May 3, 1984. Feeling aggrieved therefrom the State of Punjab has filed Criminal No. 526 DBA of 1984 in this court.

We have heard Shri S. K. Sharma, DAG Punjab for the appellant State, nemo for the respondent in spite of due service and have carefully perused the relevant record.

Relevant Section 100 of the Code of Criminal Procedure, 1973 reads :

"100. Persons in charge of closed place to allow search(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of such place, shall on demand of the officer or other person executing the warrant and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(1) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by Subsection (2) of Section 47.

(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(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 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 any of them so to do.

(5) The search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witness; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the List prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under Subsection 8, a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

(g) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of Indian Penal Code (45 of 1860)."

In terms of subsections (4) & (5) aforesaid Nihal Chand, owner of the land searched, was the best person to be associated as witness of recovery. Investing Agency having not called upon him to join the search/raid, its failure in this regard sounds the death knell of the prosecution case set up against the accused, more to when the solitary independent witness of the locality gives a die to it. Finding of not guilty returned by the learned trial court in favour of respondent accused is, therefore, affirmed.

In result the appeal filed by the State of Punjab fails and is accordingly dismissed.