State of Punjab vs Gurnam Singh

S.D. Bajaj, J.

On 20th June, 1981 while standing on the canal bridge in the area of village Jandi tehsil Jagraon district Ludhiana, the police recovered from the accused Gurnam Singh on his personal search plastic container (Kenni) Exhibit P. 1 containing 181/4 bottles of illicit liquor therein.

On being charged with the commission of offence under section 61 of the Panjab Excise Act, 1914, the accused pleaded not guilty thereto and claimed to be tried. Vide its impugned judgment dated 6th November, 1982 learned trial court acquitted the accused. Feeling aggrieved from the judgment of acquittal aforesaid the State of Punjab has filed Criminal Appeal No. 439DBA of 1983 in this court.

We have heard Shri Randhir Singh, AAG Punjab for the appellant State, Shri A.S. Kalra, Advocate, for the respondent and have carefully perused the relevant record.

P.W. 2 Constable Amrik Singh No. 2195 states in crossexamination, "The spot is situated at a distance of 4 miles from the Police Station. Before we reached the spot (Amin Chand) had met us but we did not call him. We reached after having stopped at different places on the way. We stopped on the way for about 2 to 4 minutes at each place"

Relevant sub sections (2) & (5) of Section 100 of the Code of Criminal Procedure, 1973 read :

"(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 situated 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 witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specifically summoned by it."

A search made with the active assistance of the search witnesses is in accordance with the provisions of section 100(5). The object of the section is better achieved by permitting independent witnesses to assist in the search and by rendering such assistance, they do not cease to be competent witnesses of the search. The panches should actually accompany the persons making the search and should be actual witnesses to the fact of the finding of the property. The presence of witnesses at a search is always desirable and their absence will weaken and may sometimes destroy the acceptance of the evidence as to the finding of the articles. Statutory provisions aforesaid have obviously been violated while conducting the search of the accused and there is no tangible reason to accept the alleged recovery of incriminating article from the possession of the accused.

Besides the legal infirmities aforesaid both the official witnesses in PW 1 Makhan Singh Head Constable No. 1423 and Constable Amrik Singh No. 2195 have indulged in bringing their tutored parrotlike recital on record which inspires little confidence. Observations made by the learned trial court in this regard read, "To my surprise, I find that whole of the crossexamination of the I.O. has been written by him on a paper attached with the police file. This paper also contains the copies of the entries of departure and arrival of the police party in the Police Station and the crossexamination has been noted thereon. This crossexamination was written by someone interested in the prosecution so that the other witnesses may read the cross examination at the time of his examination, in the Court. The other witness Amrik Singh was examined on 20101982 and he must have had the opportunity to read the crossexamination of the PW noted in the police file and that is why I find that there is no material discrepancy in the statement of both these witnesses. This is a malpractice going on in this Court by the prosecution and the crossexamination of the witnesses is being noted down in the police file for the facility of the witnesses to be examined at a later stage. This shows that the official witnesses are much interested in seeing that the accused must be convicted in this case and that is why they have made a parrotlike statement. The testimony of the witnesses who are tutored cannot he accepted and under these circumstances. I, hold that it is not safe to act upon the uncorroborated testimony of the official witnesses. All this readers their deposition wholly incredible.

In spite of it there are material discrepancies in their statements regarding (i) meeting people on the way; (ii) time of their arrival at the place of recovery; and (iii) the distance from which they saw the accused which render their a sections in this regard as incredible.

In this view of the matter finding of `not guilty'' returned by the learned trial court in favour of respondent is affirmed. The State Appeal against his acquittal is, therefore, wholly without merit and is consequently dismissed.