RATTAN Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner was convicted for the offence under section 61(1)(c) of the Punjab Excise Act and sentenced to one year's rigorous imprisonment and a fine of Rs. 5000/ - or in default of payment of fine, to undergo further six month's rigorous imprisonment by the learned Judicial Magistrate Ist Class, Gurdaspur. On appeal, his conviction and sentence was upheld by the learned Ist Additional Sessions Judge, Gurdaspur. Hence this revision petition.

(2.) THE only point urged by Mr. Mann, petitioner's counsel is that while conducting a raid and alleged search of the house of the petitioner, no independent witness from the locality was joined by the police. According to the prosecution story, on 19th October, 1979, an excise raid was organised and the petitioner's house was raided by Head Constable Jhirmal Singh (P.W.1) and Excise Inspector Gurdip Singh (P.W.2) along with some other police officials and the petitioner was found distilling illicit liquor by a working still. The components of the still were dismantled and drum Ex. P.5 containing 60 Kgs. of lahan and 180 MI. of liquor was recovered. Only H.C. Jhirmal Singh (P.W.1) and E -I. Gurdip Singh (P.W.2) were examined in support of the prosecution case. Admittedly, no independent witness was joined from the locality. The plea taken by the police was that an attempt was made to join witnesses from the locality, but none had come forward to join the party. This plea seems to be misconceived. Sub -section (4) of section 100 of the Code of Criminal Procedure enjoins upon the police officer conducting the raid to associate at least two respectable persons from the locality and if the witnesses from the same locality are not available, then he is to associate two respectable witnesses from the adjoining locality. But in the present case, neither the respectables from the locality nor from the adjoining locality were associated in the raid. It is unbelievable that nobody came forward to join the raid party from the village. Most of the people in villages are law abiding and nobody likes that citizens may indulge in the commission of the crime. Except the bald assertion of Head Constable Jhirmal Singh (P.W.1), there is no material on the record to show that an attempt was made to join independent witnesses from the locality. It was incumbent upon the police officer conducting the raid to contact the Sarpanch, members of the Gram Panchayat or any of the Lambardars in order to join the raid party, but it seems that no attempt had been made. The provisions of sub -sections (4) of section 100, Criminal Procedure Code are mandatory and the Legislature in enacting this provisions intended to safeguard the liberty of the citizens. Otherwise, the citizens would have been at the mercy of the arbitrariness of the police officials. In these circumstances, nor reliance can be placed on the testimony of the official witnesses, i.e. H.C. Jhirmal Singh (P.W.1) and E.I. Gurdip Singh (P.W.2). Accordingly I am of the view that it is not safe to maintain the conviction of the petitioner. He is given the benefit of doubt and acquitted.

(3.) IN the result the petition is allowed and the conviction and sentence as recorded by the Court below as set aside. The petitioner is on bail. His bail -bonds shall stand discharged. Fine, if realized, shall be refunded to him. Petition allowed.