S.D. Bajaj, J.
1. Petitioners Raghbir Singh and Satta were both found working a still for illicit distillation of country made liquor in village Jajanwala in the territorial limits of Police Station Saddar Narwana of Jind district in Haryana State on 17th May, 1984.
2. Vide judgment dated 1st June, 1989 learned Judicial Magistrate 1st Class, Narwana, convicted both the petitioners of the commission of the offence under section 6(1)(c) of the Punjab Excise Act, 1914 and sentenced each of them to rigorous imprisonment for a period of six months and to pay Rs. 500/ as fine. In default or payment of fine each one of the two convicted accused was ordered to undergo simple imprisonment for a further period of five months. Findings recorded by the learned trial court were affirmed by the learned Sessions Judge, Jind on 24th January, 1990. Feeling aggrieved therefrom both the convicted accused have jointly filed Criminal Revision No. 66 of 1990 in this Court.
I have heard Shri S.S. Rathore, Advocate, for the petitioners, Shri R.N. Lohan, Advocate, for the State, and have carefully gone through the material on record.
3. The findings recorded by the learned trial court which have been affirmed by the learned Sessions Judge, find, suffer from the following legal infirmities :
(i) P.W.1 Jiwan Lal Excise Inspector has stated that many persons of the locality met them on the way when the raiding party was coming to village Jajanwala to raid and seize the still allegedly being worked by the two accused therein but the Investigating Officer H.C, Anguri Lal PW2 did not join them as members of the raiding party or associated them in the investigation to witness the recovery of different component parts of the working still.
4. Subsection (4) of section 100 of the Criminal Procedure Code reads :
"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".
The persons to witness search should be 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. The old law which required that the witnesses should be inhabitants of the locality of the place of the search created difficulties. It has accordingly been provided under the new Code that the witnesses may be of any other locality if respectable and independent inhabitants of same locality are not available, or are not willing to be witnesses to the search. The stress in subsection (4) is on the words, "respectability" and "independence" and not on the word "locality". Where the search witness is perfectly independent and respectable, the failure or inability of the Police officer to secure search witness from the locality is merely an irregularity and does not affect the legality of the search. Search witnesses should not be disbelieved merely because they come from different locality not the testimony of such witnesses would be inadmissible in evidence on this ground, It does not however, mean that the officers conducting searches, can have two or three persons accompanying them everywhere they go for the searches. Respectable independent witnesses of the locality being available and having not been joined/associated complete disregard and violation of the mandatory provisions of subsection (4) of section 100 of the Code of Criminal Procedure, 1973 is writ large on given facts and circumstances obtaining in the present case. As held by the Supreme Court it Bhagwan Singh v. State of Rajasthan, AIR 1976 Supreme Court 985 both the accusedpetitioners deserve to be acquitted on this score alone.
(ii) In recovery memo Exhibit PB, the articles mentioned are (a) drum containing lahan, (b) plastic pipe connecting the drum of lahan with the can containing distilled liquor, (c) can containing distilled liquor, (d) earthen pitcher containing water and (e) burnt wooden pieces. Important omission from it is of `Bhattal''. After affirming contents of recovery memo Exhibit PB PW2 H.C. Anguri Lal asserted in the course of reply to a leading question put to him by the learned APP; after getting the witness declared hostile, that Bhattal was also recovered but he did not enter it in the recovery memo. Then again nothing except the empty drum allegedly containing lahan was produced in Court as case property. No explanation is forthcoming for lapse on the part of the investigating agency in not entering `Bhattal'' as part of the case property allegedly recovered from the accused vide recovery memo Exhibit PB. The structure of working still cannot be complete without the Bhattal aforesaid. The assertion of working still thus falls to the ground unless it is alleged and proved that from the lahan drum a plastic pipe was going to the can containing distilled liquor via the Bhattal aforesaid. The complete structure having not been proved to have been recovered, the edifice built by the prosecution against the two accused collapses like a house of cards,
(iii) Affidavits Exhibit PX and Exhibit PY as held by this Court in Harjeet Singh v. The State of Haryana, 1987(2) RCR(Crl.) 217 (P&H) : 1988(1) Chandigarh Law Reporter 81 are not worth the paper on which written. Relevant observation read :
"The verification of the affidavit is required to be either on knowledge or on information & it should show specifically which part of the affidavit is verified on deponent''s knowledge and which part is verified on deponent''s information. The whole of the affidavit in this case has been verified on the basis of knowledge and information. Such affidavit cannot be taken into consideration. In support, a DB Judgment of this Court in State of Pb. v. Partap Singh, 1978 CLR (Pb. & Har.) 83 is referred to. Excluding the affidavit of Karan Singh, ASI Exhibit PX we are left with no evidence as to when this sample of the opium was deposited in the Malkhana and when it was sent for chemical analysis. Such an important link of evidence is missing and exclusion of this in affidavit goes to the root of the case. The petitioner is entitled to benefit of doubt on this score".
Link evidence being missing, the accused are entitled to acquittal, on this score as well.
5. In similar circumstances it was observed by this Court in Mohan, Singh v. The State of Punjab, 1982(2) Chandigarh Law Reporter 665 : "Admittedly, the police party had gone from the police station for an excise raid. They neither cared to join anybody from the public while they started, from the police station nor they thought it proper to join anybody from the locality where the raid was conducted when naturally they had ample opportunity to join witnesses from the public which they failed to do for reasons best known to them. The evidence in this case consists of the statements of Head Constable Jagjit Singh PW2 and Constable Kulwant Singh. PW3. The learned counsel for the petitioner has taken me through the statements of the aforesaid two witnesses. I find that their statements are discrepant on a number of points. In the circumstances I think that the petitioner is entitled to the benefit of doubt. Consequently I allow this, revision petition and set aside the conviction and sentence of the petitioner. The fine, if realised, would be refunded to him". To say the least the prosecution case against the two petitioners is rendered to be of a doubtful nature and suspicious character. In line with the observations aforesaid they are entitled to the benefit of doubt and deserve to be acquittal on this score as well.
6. The legal infirmities detailed above sound the deathknell of prosecution case set up against the accusedpetitioners. In result, Criminal Revision No. 66 of 1990 jointly filed by both the convicted, accused petitioners succeeds and is allowed. Both the petitioners are acquitted. Petitioners are already on bail Bail bonds furnished by their sureties and personal bonds put in by the two petitioners themselves shall stand discharged.
