A.S. Bains, J.
1. The petitioner was convicted for the offence under Section 9 of the Opium Act and sentenced to three years' rigorous imprisonment and a fine of Rs. 5000/- or in default of payment of fine, to undergo further rigorous imprisonment for nine. months by the learned Judicial Magistrate 1st Class, Hoshiarpur. On appeal, his conviction and sentence was upheld by the learned Additional Sessions Judge, Hoshiarpur. Hence this revision petition against his conviction and sentence.
2. The prosecution case as set up at I he trial was that on 11th July, 1980, P. W. 1 S.I. Manohar Singh, who was then posted on the Detective Staff at Hoshiarpur, was instructed by the Inspector of Police to investigate the case registered against the petitioner under Section 9 of the Opium Act, Accordingly S.I. Manohar Singh P.W. reached the police station City, Hoshiarpur, where the petitioner was already in custody with the police. The petitioner was taken out of the lock-up and was interrogated by S.I. Manohar Singh P.W. in the presence of P. W. 2 A. S.I. Jarnail Singh, Joginder Nath, S.H.O. of Police Station City and Mohinder Singh. The petitioner disclosed that he had kept the opium concealed in a secret niche in his baithak of his residential house, which was known to him and that it could be got recovered by him. In pursuance of his disclosure statement, Ex. PA, he got recovered three small bags of opium from the northern wall of his baithak by removing a wooden covering. The said bags were weighed and two of them contained two kilograms of opium each and third bag contained three kilograms of opium. Out of each bag 10 grams of opium was taken out for sample, which was put into three separate small tins and made into parcels. The sample on chemical analysis was found to be Opium. The case against the petitioner already stood registered at Police Station City, Hoshiarpur vide First Information Report, Ex. PD, or. 1st July, 1980.
3. At the trial, the petitioner denied the prosecution allegations and pleaded false implication. His version is as follows:
I am innocent. On 1.7.1980, the police raided my house and thoroughly searched the house, but nothing incriminating was recovered. The police, however, look into possession my scooter and golden ornaments of ray wife. My house consists of three storeys. I live in the second floor of my house along with my family while the remaining portion of my house is in occupation of different tenants. The door of the Deohri remains open throughout and the door of the baithak opens towards the street, which is a thoroughfare. Earlier I was involved in the murder case in which I was found innocent and acquitted. Now the police has planted the case upon me. In, the Court of the learned C.J.M., Hoshiarpur and also in this Court, on the earlier hearings, the prosecution used to produce a small Gulla, but on the day when Manohar Singh Section I. was examined, the Gulla was changed and big Gulla was produced in the Court S.I. Manohar Singh never interrogated me nor he investigated this case. He remained busy in the investigation of some criminal cases of police station Sadar. Hoshiarpur. He remained out of Hoshiarpur during the period from 8.7.1980 to 12.7.1980 in connection with the investigation of some other cases. When I came to know that the police wants to arrest me, I surrendered in the Court voluntarily on 10.7.1980.
He also produced in defence D. W. 1 Santpkh Singh, regarding the site plan of his (petitioner's) house, DW 2 Smt. Gurdev Kaur, Ahlmad in the Court of the Chief Judicial Magistrate, Hoshiarpur, who produced the case file of state v. Joginder Singh, under Section 9(a) of the Opium Act, in which Mohinder Singh son of Faqir Singh of village Kadiana appeared as P. W. 1 on 6th August, 1981, D. W. 3 Sada Ram, Moharrir of C.I.A. Staff, Hoshiarpur, who produced the roznamcha (daily diary register) of C.I.A. Staff, Hoshiarpur for the month of July, 1980. He proved that S.I. Manohar Singh (P. W. 1) had left the C.I.A. Staff Hoshiarpur at 4.30 p.m. on 7th July, 1980 to investigate the case under Section 379, Indian Penal Code, F.I.R. No. 276/77 of the Police Station City, Hoshiarpur, and returned on 12th July, 1980 at 6.05 p.m. and D.W. I Mohinder Singh son of Faqir Singh, who has supported the defence version. Mohinder Singh DW was cited by the prosecution, but he was not produced.
4. The prosecution case rests on the testimony of S.I. Manohar Singh. (P.W. 1) and A.S.I. Jarnail Singh. Mohinder Singh, an independent witness, was cited, but he was given up as won over and was examined as D. W. 4 by the petitioner, as observed earlier. Although the aforesaid two official witnesses have supported the prosecution version as given in the earlier part of the judgment, but their evidence does not inspire confidence. Admittedly, the First Information Report, Ex. PD, was lodged at Police Station City, Hoshiarpur, in which it was mentioned that some persons were indulging in smuggling of Opium etc. This report was lodged by one Sohan Singh and was recorded by S.I. Joginder Nath, S.H.O. of that police station. In pursuance of the first information report, the house of the petitioner was raided by the police on 1st July, 1980. The police arrested the petitioner's wife Smt Pushpa Lata and also took into possession some ornaments, but the petitioner was not found there and no article of incriminating nature was recovered. The petitioner surrendered himself in the Court of the Magistrate on 10th July 1980 and was taken into custody by the City Police on the following day, on which 7 kgs. of opium was recovered at his instance from his house.
5. The prosecution version seems to be highly improbable. Admittedly, on the search of the petitioner's house on 1st July, 1980, nothing incriminating was reordered although the police had searched the house thoroughly and taken into custody his wife. Admittedly, the petitioner surrendered himself before the illaqa Magistrate on 10th July, 1980. It is highly improbable that before surrendering the petitioner would keep the Opium in his house when he knew that his house was searched on 1st July, 1980. Mohinder Singh, the only independent witness from the public who was joined at Police station City, Hoshiarpur at the time of interrogation of the petitioner, was not produced. The first information report lodged on 1st July, 1980, contained very vague and general allegations against several persons. Before entering the house of the petitioner it was incumbent upon S.I Manohar Singh (P. W. 1) under Sub-section (4) of Section 100, Criminal Procedure Code, to associate in the raid two or more independent and respectable inhabitants of the locality in which the house of the petitioner was situate or of any other locality if no such inhabitant was available or was willing to be a witness to, the search. This sub-section also empowers the police officer conducting the search to make an order in writing requiring such persons to attend and witness the search and if any such person, without reasonable cause, refuses or neglects to attend and witness a search, he shall be deemed to have committed an offence under Section 187, Indian Penal Code as provided in Sub-section (8) of Section 100 of the Code of Criminal Procedure. Sub-section (5) further enjoins upon the police officer conducting the search to prepare a list of all things in the course of such search and of the places in which they are respectively found and that list shall be got signed by the witnesses to the recovery. Sub-section (G) lays down that search shall be conducted in the presence of the occupant of the house and a copy of the list duly signed by the witnesses shall be delivered to the occupant or his agent. The intention of the Legislature in enacting this provision seems to be to ensure the credibility of the recoveries effected as a result of the search by the police and also to ensure that searches are conducted with decency. The persons to be joined in searches should not be of criminal background or of immoral habits; they should be impartial and without any blemish. They should generally be unconnected in any way with the police and a convicted person is also unsuitable to be associated in searches. Witnesses must be called by the police before entering a house for search and they must be present before the arrival of the police for search. The members of the raiding party, before entering a house for search, must subject themselves to thorough search of their persons by the occupants of the house or their agent. The object of this provision seems to be that the police officer should conduct the search in such a manner as to leave no room for suspicion that the incriminating article had been surreptitiously introduced by the police officer himself or his subordinates or the informer. The procedure as contained in Sub-sections (4) to (8) of Section 100, Criminal Procedure Code, is mandatory, which must be complied with. It is not a mere formality. If such procedure is not followed by the police officer conducting a search, then there could be every possibility of planting an incriminating thing/article on any innocent citizen's house. But no such procedure was followed in the present case while conducting the search of the petitioner's house. There is no evidence on the record that S.I. Manohar Singh (P. W. 1) and other members of his party had subjected themselves for search of their persons by the petitioner or to any other occupant of the house and that S.I. Manohar Singh P. W. made any attempt to join any independent and respectable inhabitant of the locality where the house of the petitioner was situate or of any other locality if such a person was not available or willing to attend and witness the search or that he had asked anybody in writing to join and witness the search.
6. Another important fact which falsifies the prosecution story is that there is no entry in the daily diary register of the CIA Staff, Hoshiarpur that S.I. Manohar Singh (P. W. 1) left the CIA Staff Hoshiarpur on 11th July, 1980 in connection with the investigation of the present case. The only entry in the Daily Diary Register as proved by D. W. 3 Sada Ram, Moharrir is to the effect that S.I. Manohar Singh (PW 1) left the CIA Staff on 7th July, 1980 at 4.30 p. m. in connection with the investigation of a case under Section 379, Indian Penal Code, and returned to the CIA Staff on 12th July, 1980.
7. Thus, the recovery of 7 Kgs. of Opium at the instance of the petitioner seems to be highly doubtful as S.I. Manohar Singh (PW 1) did not care to join any independent and respectable inhabitant of the locality where the petitioner's house was situated or of the adjoining locality in case no such person was available or was willing to join and witness the search. S.I. Manohar Singh (PW 1) has admitted that he did not make any effort to join any independent and respectable inhabitant of the locality, although the petitioner's house was located in Bazar Vakilan, which is more or less in the centre of Hoshiarpur City and is a crowded place, where there could be no dearth of joining two persons from the locality. The view taken by the appellate Court that there was no need of joining any respectable person from the locality as the recovery was effected in pursuance of the disclosure statement made by the petitioner and was not adually effected in pursuance of the search effected at the premises owned by the petitioner is erroneous. It makes no difference whether the investigating officer himself goes to search the house or he goes there at the instance of the petitioner. Sub-section (4) of Section 100, Criminal Procedure Code, does not make any distinction between the searches made by the investigating officer on secret information or otherwise and the searches made in pursuance of a disclosure statement made by the accused. The whole purpose, as observed earlier, to associate two independent and respectable inhabitants of the locality is to install confidence in the prosecution version so that there may be no scope to a doubt that in fact the article recovered was planted. Although thorough search was conducted earlier on 1st July, 1980, but no incriminating material was recovered from the petitioner's house. It seems that since the wife of the petitioner was arrested and some gold ornaments were also taken into, possession by the police, the opium was planted on the petitioner by the police in order to save their own skin. Admittedly, no allegation was made against the wife of the petitioner in the first information report, in which the allegations were vague and of general nature and the police had no reason to arrest the petitioner's wife and take into possession her ornaments.
8. For the reasons recorded I am of the view that it is not safe to maintain the conviction of the petitioner. Accordingly he is given the benefit of doubt and acquitted.
9. In the result the petition is allowed and the conviction and sentence as recorded by the Courts below are set aside. Fine, if realized, shall be refunded to the petitioner.