The non-compliance with the provisions of Section 100(4) of the Cr.P.C. would not render the search illegal or make the evidence discovered inadmissible.

S.S.DEWAN, J.

1. The primary question for determination in this revi-sion is whether the non-compliance with the provisions of S.100(4) of the Cri.P.C., 1973 would render the search illegal.

2. Karnail Singh petitioner was convicted under S.61(1)(c) of the Punjab Excise Act and sentenced to one years rigorous imprisonment and a fine of Rs. 5000.00 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. 300.00 as costs of the pro-ceedings. Feeling aggrieved with the order, he has now come up in revision.

3. The accusations against the peti-tioner as appearing from the impugned judgments were that on 29th July, 1979, on receipt of secret information. Inspec-tor 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 pri-marily 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 testi-mony of the prosecution witnesses and consequently convicted and sentenc-ed 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 con-tained in S.100(4) of the Cri.P.C., 1973, have not been complied with and, there-fore, the trial is vitiated and the convic-tion is bad. In support of this contention, the learned counsel relied on a single Bench decision of this Court reported as Gurnam Singh V/s. State of Punjab, 1981 Chand LR (Cri) 438. In that case under S.61(1)(c) of the Punjab Excise Act, the courts below convicted the accused, but his conviction was set aside on revi-sion by A.S. Bains, J. with the following observation:

"There is legal infirmity in the prose-cution case also, that is the provisions of S.100, Cri.P.C., are not complied with. Although the raid was conducted in the house of the petitioner in village Mustafabad during day time yet no indepen-dent person from the locally was asso-ciated in the search of the petitioners house. Head-Constable Gurdip Singh has not certified that no such person was available in the locality. S.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 Singhs case (supra).

7. The learned counsel for the peti-tioner has argued that the search being not conducted strictly in accordance with the provisions of S.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/s. State of Kerala, 1963 (1) Cri LJ 669 (Ker); Santa Singh V/s. State, (1970) 72 Pun LR 618 (Punj) and State of Punjab V/s. 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 ap-plicable 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