Bhawani Singh, J.@mdashThe State has challenged the acquittal of Smt. Sahni Devi and Smt. Pataso Devi by the trial Judge in a case u/s 61(1)(a)
of the Punjab Excise Act, 1964, as applicable to the State of Himachal Pradesh in Criminal Case No. 85-111/1983 by decision of 31-1-1986.
2. Briefly the case is that on 23rd August, 1982 at about 4.30 p.m. Sahibdial Singh, ASI accompanied by Pritam Chand, Constable No. 576,
A.K. Dewan, Excise Inspector and Kishori Lal raided the house of accused and found one pitcher containing about 14 Kgs. Lahan and illicit liquor
to the extent of 2075 ml. This was done as a result of secret information. On recovery of this material, information through ruka was transmitted to
the Police Station, as a result of which First Information Report Ext. PW 4/A was registered. It also appears that additional force was also sent for
and thereafter the raid was conducted. Recoveries were made and they were taken into possession by the police.
3. The matter was brought before the Court and after the trial, the accused were acquitted on the ground that although there is some mention of
contraband in the ruka (Ex. PW 6/A) yet there is no mention of the same in the First Information Report. This kind of difference in these two
important documents created doubt as to the truthfulness of the prosecution story. It is the principle question which has compelled the State to
challenge the decision before this Court.
4. Counsel for the State has re-iterated that this approach of the trial Court is grossly irregular and it was also submitted that when once the trial
Court had found that illicit liquor was recovered from the accused, the accused should have been convicted in accordance with law.
5. After hearing the counsel for the parties, I am of the opinion that the view taken by the trial Court cannot be considered to be unreasonable or
perverse. It is quite strange that these documents are different from each other. Further, the discripancy has not been (explained satisfactorily to the
Court. The result is, no view different from the one already taken by the trial Court can be taken in this appeal against acquittal.
6. O.P. Sharma, counsel for the Respondent was permitted to urge that in this case also the Police did not follow the provision of Section 100(4)
of the Code of Criminal Procedure by associating two or more independent and respectable inhabitants of the locality where the place was
searched and no reason has been given by the Police in this connection. Learned Counsel placed reliance on number of decisions of this Court
some of which are Criminal Revision No. 13 of 1986 Krishna Devi v. State, Criminal Appeal No. 65 of 1986 State v. Chhinda. Criminal Appeal
21/86 State v. Philli, Criminal Appeal 18/86 Harhans Lal v. State, Criminal Revision 23/86 Maya v. State and Criminal Appeal 105 of 1985 Prem
Lata v. State of H.P. In all the decisions, it has been held that it is essential for the Investigating Agency to comply with the requirement of Section
100(4) of the Code of Criminal Procedure and in absence of reasonable and plausible explanation by the prosecution the investigation is liable to
be termed as unfair. In my view, in the present case also the Investigating agency has committed the same error. It is not complied with the
requirement of Section 100(4) of the Code of Criminal Procedure nor there is any explanation for noncompliance thereof. The House of the
accused was raided and it appears that the prosecution had enough time to do so. In such a situation it could very easily look for and arrange
independent witnesses as required under this provision in order to cast away any kind of doubt as to the commission of the offence and story of the
prosecution. Although the versions of the official witnesses cannot be discarded as they are official witnessess yet, in the absence of the association
of independent witnesses without any plausible explanation, it is difficult to understand why the Police Associated only the official witnesses in the
case. In these circumstances this submission of the id. counsel for the accused has substance and the same is accepted.
7. The result of the aforesaid discussion is, there is no merit in this appeal and the same is accordingly dismissed.
