1. The applicant has been convicted of an offence Under Section 60(a), Excise Act, for having been found in possession of certain quantity of Ganja without licence for its possession.
2. Learned counsel has attacked the conviction mainly on the ground that the search was illegal.
3. In several cases I have refused to interfere with the orders of the Court below on the ground that the provisions of Section 103, Criminal P. C., were not strictly observed, because I was satisfied in all those cases that the accused had not been prejudiced by a disregard of those provisions of law. At the same time all those cases have produced an indelible impression upon my mind that the provisions of Section 103, Criminal P. C., which are very salutary provisions for the protection of the interests of an accused person are generally observed, more in their breach than in their compliance, by the police of these provinces. It appears to me that it is high time that steps should be taken to stop this wanton disregard of statutory provisions by the police of these provinces.
4. Neither of the two search witnesses in this case can be regarded to be a witness of the locality. Search witness, Jagannath Singh was the driver of the motor truck which took the raiding party from the police station to the house of the accused. He is certainly not a resident of the village where the raid was made. It is not known how far his native village is from the place which was searched, It is also not known how far the place where he works for his living is from that village. The other search witness, Sripati, is also a resident of a different village.
5. The plea, which I am now considering namely, the plea that the search was illegal, was overruled by the learned Sessions Judge on two grounds. The first ground upon which it was overruled was that it is the respectability of the witnesses upon which greater emphasis is laid by law than upon the locality to which they belong. Even if I were to accept this criterion, it is obvious to me that the motor truck driver, Jagannath cannot be regarded to be so respectable as to justify the requirements about locality being ignored. Of course he describes his occupation to be zamindari, but he must be a very insignificant zamindar indeed to be compelled to earn his living as a motor truck driver. We know nothing about the respectability of the other witness, Sripati. He gives no account of himself in his deposition and there is no evidence on the record to prove his status in life. The requirements of the search witnesses being the residents of the locality is thus not thrown in the background, in this case by virtue of the search witnesses being highly respectable witnesses, for they are not such witnesses.
6. Moreover, there is no evidence to prove that more respectable or even equally respectable witnesses were not available in the village in which the raid was made.
7. The second ground upon which the learned Judge based his decision on this point is that the witnesses residing in the village were unwilling to come forward as search witnesses on account of the great influence wielded by the applicant. There is nothing to support this observation excepting a sentence in the cross-examination of Circle Inspector, Ram Sewak Singh. Ram Sewak Singh said nothing upon this point in his examination-in-chief. It was only an injudicious question put in the cross-examination that afforded an opportunity to the prosecution to fill in the lacuna to some extent. The statement of Ram Sewak Singh is extremely vague. He has not stated whether he made any efforts to get any witnesses of the locality and that they refused to be the witnesses of the search. It may be that it is Ram Sewak Singh's pure imagination that the residents of the village were unwilling to come as search witnesses. I believe that there is a Mukhia in every village or a Mukhia for every small group of villages and, generally, there can be no doubt about the respectability of a Mukhia. No reason has been shown why the Mukhia was not called upon to be a search witness in the present case. A perusal of the statement of prosecution witness, Jagannath Singh, indicates, though not directly, that no effort was made by the Sub-Inspector to ask any resident of the village to be a search witness.
8. When the provisions of Section 103, Criminal P. C., are departed from, the burden lies upon the prosecution to explain the circumstances under which it was not possible to comply with those provisions. The prosecution has signally failed to discharge that onus in the present case.
9. This is not the first attempt on the liberty of the applicant. He and his father both were prosecuted once Under Sections 149 and 332, Penal Code. They were acquitted on 3rd August 1945. The applicant's father who was an accused in this case also, was then prosecuted Under Section 60 (a), Excise Act. He was acquitted in that case also on 3lst December 1947. This is the third attempt made against the liberty of the applicant and his father. A case for damages for malicious prosecution was instituted by the father of the applicant against the Sub-Inspector who was responsible for the case Under Sections 149 and 332, Penal Code. It is thus apparent that the applicant could not be in good books of the local police.
10. The search witness, Sripati, could not properly face cross-examination. Although in his examination-in-chief he had given details of the places from where the recovery was made, be could not give any details in his cross-examination. The learned Sessions Judge has explained this with the observation that the cross-examination having taken place a few months, after the examination-in-chief, the witness might have forgotten the details by the time he came to be cross-examined.
11. I do not consider this to be a sufficient explanation. The details of places from where the recovery was made in the presence of a person could not be so easily forgotten; an equally good explanation is that Sripati was coached to depose about those places and he forgot the coaching when he came to be examined.
12. Having regard to the illegality already mentioned and the evidence on the record, I am by no means satisfied that the conviction of the applicant is fit to be maintained.
13. This application in revision is, therefore, allowed, the conviction of the applicant and the sentence awarded to him are set aside. He is on bail. He need not surrender to his bail. His bail bonds are discharged.