S.S. Dewan, J.
1. The primary question for determination in this revision is whether the non-compliance with the provisions of Section 100(4) of the Cri. P.C. 1973 would render the search illegal.
2. Karnail Singh petitioner was convicted under Section 61(1)(c) of the Punjab Excise Act and sentenced to one year's rigorous imprisonment and a fine of Rs. 5000/- by the Judicial Magistrate, Patiala. On appeal, the learned Sessions Judge, Patiala, while maintaining his conviction, released him on probation for a period of two years but ordered him to pay Rs. 300/- as costs of the proceedings. Feeling aggrieved with the order, he has now come up in revision.
3. The accusations against the petitioner as appearing from the impugned judgments were that on 29th July, 1979, on receipt of secret information. Inspector Kasturi Lal formed a raid party by joining with him Excise Inspector Gurmel Singh and an independent person Ram Asra from Samana. The petitioner was surprised at his house situated in Samana and was found working a still for distillation of illicit liquor. He was apprehended and taken into custody. The still was cooled and dismantled and its component parts as usual were taken into possession. The sample sent to the Chemical Examiner was found to be liquor of illicit origin. Ram Asra was not examined by the prosecution as he was stated to have been won over by the accused. The prosecution case primarily rested on the testimony of Excise Inspector Gurmel Singh, P. W. 1 and Inspector Kasturi Lal, P. W. 2.
4. The accused denied the prosecution allegations and pleaded false complicity in the case. Tehal Singh was examined in defence. Both the courts below on critical appraisal accepted the testimony of the prosecution witnesses and consequently convicted and sentenced the accused as indicated above.
5. At the motion stage before K. S. Tiwana, J., the main point that was urged by the learned Counsel for the petitioner is that the mandatory provisions contained in Section 100(4) of the Cri. P.C. 1973, have not been complied with and, therefore, the trial is vitiated and the conviction is bad. In support of this contention, the learned Counsel relied on a single Bench decision of this Court reported as Gurnam Singh v. State of Punjab 1981 Chand LR (Cri) 438. In that case under Section 61(1) (c) of the Punjab Excise Act, the courts below convicted the accused, but his conviction was set aside on revision by A. S. Bains, J. with the following observation:
There is legal infirmity in the prosecution case also, that is the provisions of Section 100, Cri. P.C. are not complied with. Although the raid was conducted in the house of the petitioner in village Mus-tafabad 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), Cri. P.C. is mandatory.
6. K. S. Tiwana, J., took a contrary view of the aforesaid decision made by A. S. Bains, J., and admitted the case to the Division Bench for reconsideration of the decision in Gurnam Singh's case (supra).
7. The learned Counsel for the petitioner has argued that the search being not conducted strictly in accordance with the provisions of Section 100(4) of the Cr. P.C. the evidence discovered by the search becomes inadmissible and the conviction based on such inadmissible evidence is unsustainable. In support of this contention, the learned Counsel placed reliance on the decisions in A.P. Kuttan Panicker v. State of Kerala 1963 (1) Cri LJ 669 (Ker); Santa Singh v. State (1970) 72 Pun LR 618 (Punj) and State of Punjab v. Hakam Singh, 1978 Cri LJ 757 (Punj and Har), It is needless to refer to the decisions in the aforesaid cases because the ratio thereof is not applicable to the facts and circumstances of this case.
8.Section 50 of the Punjab Excise Act provides that all arrests and searches etc. under the provisions of this Act shall be made in accordance with the provisions of the Criminal Procedure Code. Section 100(4) of the Code reads as under:
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 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.
9. From the evidence on record we find that there is no contravention of the provisions of Section 100 of the Code. Before making the search, Inspector Kasturi Lal had joined with him Ram Asra, who hails from the same locality. He was, however, left out by the prosecution as having been won over by the accused. Now assuming that there was contravention of the provisions contained in Section 100(4) of the Code and the search was thereby defective, a plethora of judgments have uniformally held that it will not vitiate the trial and make the evidence of such officers inadmissible in evidence.
10. One of the earliest cases is that of Barindra Kumar Ghose v. Emperor (1910) ILR 37 Cal 467. It was contended in that case that the evidence discovered by the search was not admissible as the search was held in disregard of the provisions of the Code. The Court while disagreeing with the contention that the searches were illegal, held that even on the assumption that they were illegal, the evidence was not inadmissible. The learned Chief Justice stated that, 'what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in Which the provisions of the Cr. P.C. were disregarded.'
11. A Full Bench of the Madras High. Court in Solai Naik v. Emperor (1911) ILR 34 Mad 349 also was of the same view. In that case, a police officer conducted a search at a place beyond his station limits and the question was raised whether that search list could be admitted in an evidence and other evidence of the search could be let in. It was held that even though the search might be illegal, the evidence was not inadmissible.
12. In Emperor v. Alladad Khan (1913) ILR 35 All 358 a Division Bench of the Allahabad High Court set aside the order of acquittal stating that whether the search was legal or not, there was evidence in the case that the accused had kept contraband articles in his house and that the accused should, therefore, be convicted.
13. In Ramrao Ekoba v. Crown AIR 1951 Nag 237 Hemeon, J., held that 'Although the failure to comply with the provisions regulating searches may cast doubts upon the bona fide of the officers conducting the search, there is nothing in law which makes the evidence relating to an irregular search inadmissible and a conviction based on such evidence is not invalid on that ground alone'.
14. In re Govindan Nair : AIR1959Mad544 it was held that the non-compliance with the provisions of Section 103 Cr. P.C. would not render the search illegal. The circumstance would only affect the weight of the evidence in support of the search and the recovery and it would not affect the legality of the search itself. The weight to be attached to the evidence depends on the circumstances of each case. If the Court is satisfied, as to finding of articles, irregularity of search is no bar to conviction. Evidence found in an illegal search is not inadmissible in evidence.
15. We have also the authoritative pronouncements of the Supreme Court. In Sunder Singh v. State of Uttar Pradesh (S) : 1956CriLJ801 , it was held that 'assuming that the witnesses who actually witnessed the search were not respectable inhabitants of the locality, that circumstances would not invalidate the search. It would only affect the weight of the evidence in support of the search and the recovery. Hence at the highest the irregularity in the search and the recovery, in so far as the terms of Section 103 had not been fully complied with, would not affect the legality of the proceedings. It only affected the weight of evidence which is a matter for courts of fact and the Supreme Court would not ordinarily go behind the findings of fact concurrently arrived at by the Courts below'. Similar view was taken in Radha Kishari V. State of Uttar Pradesh : (1963)IILLJ667SC .
16. It will be plain from the aforementioned catena of authorities that Gurnam Singh's case (1981) Chand LR (Cri) 438 (supra), was not correctly decided and the dictum laid down therein that the failure to join two independent witnesses from the locality at the time of search would vitiate the trial or prevent the conviction being made, has to be disapproved.
17. Adverting now to the merits of the case, a fragmentary challenge to the independence of the official witnesses was made. Inspector Kasturi Lal and Excise Inspector Gurmel Singh must be held to be disinterested and their testimony as observed by the Supreme Court, a number of times cannot be doubted merely on the ground of being official witnesses.
18. The rivision petition is without merit and is hereby dismissed.