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Gurnam Singh v. State Of Punjab .
Judicial Opinion Summary — A.S. Bains, J.
Factual and Procedural Background
The petitioner was convicted by the Judicial Magistrate I Class, Amritsar, by judgment and order dated 7 October 1977 under section 61(1)(c) of the Punjab Excise Act and sentenced to rigorous imprisonment for nine months and to pay a fine of Rs. 2,000/- or, in default, to undergo further rigorous imprisonment for four months. On appeal the Additional Sessions Judge, Amritsar, maintained the conviction and the fine but reduced the imprisonment to six months. The petitioner filed the present revision.
According to the prosecution, on receipt of secret information H.C. Gurdip Singh formed a raid party on 10 January 1976 which included Dev Raj, Excise Inspector, and other police officials. They conducted a raid at the petitioner's house in village Mustafabad, apprehended him allegedly red-handed while he was feeding fire under a still, cooled and dismantled the still and took its components into possession. The petitioner was prosecuted and convicted as described.
At trial the petitioner denied involvement and pleaded false implication, giving a version that included an allegation that Head Constable Gurdip Singh had purchased mutton from his shop and not paid, that he had been challaned under section 107/151 Cr.P.C. at the instance of a neighbour, and that he was a meat seller. In defence he produced one witness, Bansi Lal (D.W.1).
Legal Issues Presented
- Whether the conviction can be maintained when the statutory requirements of section 100(4), Criminal Procedure Code, governing attendance of independent and respectable inhabitants as witnesses to a search, were not complied with in a house search.
- Whether the prosecution witnesses (Head Constable Gurdip Singh and Excise Inspector Dev Raj) were sufficiently reliable to sustain the conviction.
- Whether the precedent relied upon by the appellate court, Darshan Singh v. State of Punjab . 1974 Ch. L.R 321., is applicable to the facts of a house search as opposed to an open-field raid.
Arguments of the Parties
Petitioner's Arguments
- The petitioner denied complicity and pleaded false implication.
- He asserted that Head Constable Gurdip Singh had purchased mutton from his shop but did not pay despite requests.
- He noted a prior challan under section 107/151 Cr.P.C. instigated by a neighbour, suggesting possible motive for false implication.
- He identified his occupation as a meat seller (offering context for interactions with police officers).
- The petitioner produced Bansi Lal (D.W.1) in support of his version.
Prosecution's Arguments
- The prosecution presented evidence that a raid was conducted at the petitioner's house following secret information, that the petitioner was caught red-handed feeding fire under a still, and that the still was cooled, dismantled and seized.
- Evidence in support of the raid and seizure was given by Head Constable Gurdip Singh and Excise Inspector Dev Raj.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Darshan Singh v. State of Punjab . 1974 Ch. L.R 321. | The appellate Court relied on this authority in relation to searches/raids. | The court distinguished this authority as in that case "the raid was organised in an open space in the fileds and it was not a case of house search," and therefore found it inapplicable to the present house-search facts. |
Court's Reasoning and Analysis
The court examined the evidence and found that although the prosecution story was supported by Head Constable Gurdip Singh and Excise Inspector Dev Raj, their testimony did not inspire confidence. The petitioner's account appeared probable in light of his occupation as a meat seller and the supporting testimony of D.W.1 Bansi Lal; the court noted that police officials sometimes demand articles free of cost, which made the petitioner's version plausible.
The court identified a material legal infirmity: the prosecution had not complied with the provisions of section 100, Criminal Procedure Code, specifically section 100(4), which the court treated as mandatory. The provision requires that before making a search the officer must call upon two or more independent and respectable inhabitants of the locality (or of another locality if none are available) to attend and witness the search and may issue an order in writing to them.
In the present case, the search occurred in the petitioner's house in a village, yet there was no attempt to associate two or more independent and respectable inhabitants of the village as witnesses nor any certificate by the Head Constable that no such persons were available. The court emphasized that because distilling illicit liquor is a serious offence, associating independent respectable inhabitants for a house search is important to inspire confidence in the prosecution case. The court therefore found the absence of compliance with section 100(4) to be a fatal defect.
The court also considered and rejected the appellate court's reliance on Darshan Singh v. State of Punjab on the ground that that decision concerned an open-field raid, not a house search, and so was distinguishable.
Holding and Implications
Core Ruling: The conviction and sentence of the petitioner are set aside and the petitioner is acquitted.
Consequences effected by the decision:
- The petitioner was given the benefit of the doubt and acquitted.
- The convictions and sentences recorded by the courts below were set aside.
- The petitioner, who was on bail, shall have his bail bonds discharged.
- If the fine was paid, it shall be refunded to him.
The opinion's reasoning rests on witness credibility and mandatory compliance with section 100(4), Cr.P.C.; the opinion distinguishes the cited precedent as inapplicable to a house search. The opinion does not set out any broader legislative or constitutional implications beyond its application to the facts and statutory non-compliance in this case.
A.S Bains, J.:— By judgment and order dated 7th October, 1977, the Judicial Magistrate I Class Amritsar, convicted and sentenced the petitioner under section 61 (1) (c) of the Punjab Excise Act to under go rigorous imprisonment for nine months and to pay a fine of Rs. 2,000/- or in default of fine, to undergo further rigorous imprisonment for four months. The learned Additional Sessions Judge, Amritsar, on appeal maintained the conviction and sentence of fine, but reduced the sentence of imprisonment from nine months to six months. Hence the present revision.
2. According to the prosecution story, on receipt of a secret information, H.C Gurdip Singh, on 10th January, 1???76, formed a raid party consisted of Dev Raj, Excise Inspector and other police officials and conducted raid at the house of the petitioner in village Mustafabad and apprehended him red handed when he was feeding fire under the still. The still was cooled and dismantled and its components were taken into possession. The case registered against the petitioner. He was prosecuted and convicted and sentenced as aforesaid.
3. At the trial the petitioner denied his complicity in the crime and pleaded false implication. He gave his own version regarding the incident which is as under:—
“I am innocent. I was involved falsely by Gurdip Singh Head Constable, who purchased mutton from my shop about three kilos, but did not make payment inspite of requests. I was also challaned under section 107/151, Criminal Procedure Code at the instance of my neighbour Hardev Singh. I am a meat seller.”
4. In defence be produced Bansi Lal (D.W 1).
5. I have persued the evidence. No doubt, the prosecution story as given in the earlier part of the judgment is supported by Head Constable Gurdip Singh and Dev Raj, Excise Inspector, but their testimoney does not inspire confidence. The petitioner is running a meat shop near the Police Post Verka and his version seems to be probable, because it is not uncommon for such police officials to demand articles such as meat free of cost. Moreover, his version is supported by D.W 1 Bansi Lal.
6. There is nothing against Bansi Lal.
7. There is legal in???rmity is the prosecution case, also, that is, the provisions of section 100, Criminal Procedure Code, are not complied with Although the raid was conducted in the house of the petitioner in village Mustafabad during day time, yet no independent person from the locality was associated in the search of the petitioner's house. Head Constable Gurdip Singh has not certified that no such person was available in the locality. Section 100 (4), Criminal Procedure Code, is mandatory and it is in the following terms:—
“100(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 any other locality if no such inhabitant of the locality is available or is willing to be a witness to the search, to attend and witness the search and may issue order in writing to them or any of them ???o to do.”
8. From the bare reading of this provision it is plain that before making a search, the officer concerned is bound to call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate. However it no such inhabitant of the said locality is available or is willing to be witness to the search, then he shall call upon two or more independent and respectable inhabitants of any other locality, to attend and witness the search and may issue an order in writing to them or any of them so to do. But, in the present case no attempt has been made by the Head Constable to associate two or more independent and respectable inhabitants of the village. Distilling illcit liquor is a serious offence and in order to inspire confidence it is incumbent upon the officers of the raid party to associate some independent and respectable inhabitants of the locality in which the place is to be searched is situate. May be that sometimes independent person may not be available, but then that fact is to be recorded by the officer concerned. In the present case, the search took place in the village and and there is nothing on the record to show that no independent person was available. The authority Darshan Singh v. State of Punjab . 1974 Ch. L.R 321. relied upon by the appellate Court is not applicable to the facts of the present case. There the raid was organised in an open space in the fileds and it was not a case of house search.
9. For the reasons recorded I am of the considered view that it is not safe to maintain the conviction of the petitioner. Accordingly he is given the benefit of doubt and acquitted. His conviction and sentence as recorded by the Courts below are set aside. He is on bail. His ball bonds shall stand discharge. Fine, if paid shall be refunded to him.
R.M.S
Order accordingly.
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