KAKA SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) PETITIONER Kaka Singh was convicted by Judicial Magistrate 1st Class, Panipat under Sections 61(1)(c) and 61(1)(a) of the Punjab Excise Act by this order dated 30th October, 1985. He was sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs. 1,000/- or in default of payment of fine he was ordered to further undergo simple imprisonment for three months, on first count. On the second count, he was awarded six month's rigorous imprisonment with a fine of Rs. 500/-. In default of payment of which he was ordered to suffer simple imprisonment for one month. It was directed that both the sentences shall run concurrently. On appeal filed by the accused the substantive sentence for the office under Section 61(1)(c) of the Act was reduced to six months' rigorous imprisonment by Sh. S.K. Jain, Sessions Judge Karnal, vide his order dated 1st February, 1986, who increased the fine to Rs. 2,000/- thereunder, in default of payment of which he ordered the accused to suffer further rigorous imprisonment for two months. The substantive sentence in respect of the offence under Section 61(1)(a) of the Act was reduced to three months, with a fine of Rs. 500/- or in default of payment thereof, the accused was ordered to undergo further rigorous imprisonment for one month. Feeling aggrieved against the order of conviction and sentence, the accused has come up in revision.

(2.) THE prosecution case in brief is that on 11th May, 1983, when Kali Ram, SI, along with Constables Karnail Singh and Ram Kumar was present at Bus Stand Hathwala in connection with patrol duty, he received a secret information that the petitioner was distilling illicit liquor, and that a working still and the illicit liquor could be covered if his place was raised. Kali Ram, SI, organised a raiding party, joined Surat Singh PW besides said Karnail Singh and Ram Kumar, Constables. The petitioner was found operating a working still and dis-illing liquor. The working still was dismantled and its components along with 100 kgs. of lahan and three bottles of liquor were taken into possession from him.

(3.) MR . H.S. Kamboj, learned Counsel for the petitioner, has submitted that it was a case of secret information and the residential house of the petitioner situated in village Raksera was raided. In this situation, it is contended, the investigating officer was bound to join an independent witness from the locality. He has drawn my attention to the provisions of Section 100(4) of the Code of Criminal Procedure. "I have considered the argument. As per the prosecution case, Surat Singh PW was joined from the public as and independent witness but he did not support the prosecution case, and the conviction is based solely on the testimony of Kali Ram, SI, PW6 and Karnail Singh, HC, PW5. According to Kali Ram PW, secret information was received at the bus stand and the village of the petitioner is stated to be a big one. It is not understandable why respectables of the village were not joined at the time of the raid. Surat Singh, the only witness joined by the prosecution for the purpose, did not support the prosecution. In case of a house search, the law enjoins upon the raiding officer to join two or more independent respectable inhabitants of the locality. Obviously, this requirement of law is lacking in this case, the so-called independent witness in this case namely Surat Singh not having supported the prosecution, it casts a doubt on the truthfulness of the prosecution case. Therefore, it will not be safe to accept the testimony of the official witnesses alone. In the circumstances, the petitioner is entitled to the benefit of doubt. Consequently, the revision is accepted and the petitioner is acquitted of the charge. Revision accepted.