SURINDER SINGH, J. - (1.) THIS revision petition has been filed by Pakhar Singh son of Dara Singh and Darshan Singh son of Surjan Singh. Both of them were convicted by the Chief Judicial magistrate, Kapurthala under section 61(1)(c) of the Punjab Excise Act and each one of them was sentenced to one year rigorous imprisonment and a fine of Rs. 5000/-, in default of payment of fine, each of the petitioners was ordered to under go further rigorous imprisonment for six months. The appeal filed by the petitioners was dismissed by the Additional Sessions Judge, Kapurthala.
(2.) ON 3.12.1980, on receiving secret information against the petitioners to the effect that they were engaged in distillation of illicit liquor, in the "Behak" of Pakhar Singh petitioner, situated in the area of village Lakhan-Ke-Padde, S.I. Amar Singh (PW2) recorded the first information report at the Police Station and proceeded to the place mentioned above. From near the village the S.I. deputed a constable to bring some respectables for being associated with the raid, but none was available. The Police party then effected the raid at the "Behak" of Pakhar Singh petitioner, where both the petitioners were caught red handed while working a still for distillation of illicit liquor. They were arrested. The various components of the still were dismantled and were taken into possession. A small drum (Ex.P1) was found placed on the hearth. The drum contained about 40 kgs. of Lahan. From the distilled liquor, a sample was obtained and the remaining liquor was found to measure 1380 Mls. After the prosecution, the two petitioners were convicted and sentence as already noticed. The main point which has been urged in the revision petition by the learned counsel for the petitioners is that the raid in the present case had been conducted on the basis of a secret information received by the investigating officer earlier. The argument is that as the raid was to be conducted in an enclosed place, the provisions of section 100(4) of the Criminal Procedure Code were attracted and had to be complied with in letter and spirit. This had, however, not been done, in that before making the search it was mandatory for the investigating officer to call upon two or more independent and respectable inhabitants of the locality where the search was to be conducted. The provision made in sub-section (4) of section 100 of the Criminal Procedure Code in this behalf is a salutary safe-guard to ensure the sanctity of the search conducted by the police officers. The mere statement by the Investigating officer that he had tried to associate some respectables of the locality but none was available cannot suffice as a convenient by-pass to the said provision. The question is not res-integra even in this Court. it was held in Rattan v. The State of Punjab 1984 305 1984(1) Recent Criminal 1984(2) CLR 538 that the provisions of section 100(4) of the Criminal Procedure Code are mandatory and its non-compliance would result in the prosecution case being doubtful. This case also pertained to a working still where the accused had been convicted under section 61(1)(c) of the Punjab Excise Act. His conviction was, however, set aside on the ground that no respectable witness of the locality had been associated before the raid. It has been held to the same effect in Bhan Singh alias Bhagwan Sigh alias Bhana v. The State of Punjab 1984(1) CLR 662 by another learned Single Judge of this Court. I am in respectfully agreement with the view enunciated in these authorities.
(3.) IN the result, this revision petition is allowed, the conviction and sentence of the two petitioners are set aside and they are acquitted of the charge framed against them. They are on bail. Their bail bonds stand discharged. The fine, if paid by them, shall be refunded.;