Ajit Singh vs State of Punjab

Harmohinder Kaur Sandhu, J.

Ajit Singh, a labourer of Basti Danish Manda, Jalandhar was tried for an offence under Section 9 of the Opium Act by Judicial Magistrate Ist Class, Amritsar for keeping in his possession 5 kilograms of opium. He was found guilty and was sentenced to undergo rigorous imprisonment for 11/2 years and to pay a fine of Rs. 5000/. Aggrieved by this judgment Ajit Singh filed an appeal which was dismissed by the learned Additional Sessions Judge, Amritsar vide his judgment dated June 2, 1986. Ajit Singh has now filed this Criminal revision assailing the judgments recording his conviction.

The prosecution case in brief was that on 8.4.1984 ASI Mohan Singh Police Station `D'' Division Amritsar was present near Mandir Kohrian for checking when he apprehended the petitioner on suspicion. Personal search of the petitioner led to the recovery of 5 kilograms of opium which he was carrying in a bag. 50 grams of opium was separated as sample. The sample and the remaining opium were sealed into two separate parcels and where seized vide memo Ex. PK. Report of the Chemical Examiner Ex. PD revealed that the contents of the sample constituted opium. Then the challan was presented in Court.

The case of the prosecution hinged on the testimony of A.S.I. Mohan Singh PW1 and Constable Jaimal Singh PW2. Affidavits of formal witnesses and report of Chemical Examiner were also tendered in evidence.

In defence the case of the petitioner was that no opium was recovered from his possession. He was employed in a sports factory in Jalandhar. He was returning from Amritsar to Jalandhar when at the bus stop Amritsar somebody removed his purse. A.S.I. Mohan Singh met him there and took him to the police station. He demanded money from him but since he was unable to pay anything he was involved in a false. He a examined Dalip Singh lambardar and Swaran Singh in his defence who deposed about the good moral character of the petitioner.

The learned Counsel for the revisionpetitioner contended that besides the statements of two police officials who were highly interested in the case here was no other independent evidence on record to show that the petitioner was in fact carrying any contraband article. It was not a case where recovery was effected all of a sudden in a deserted place and no independent witness was available. Recovery was alleged to have been effected during day time in a populated area and still the investigation Officer, though he had an opportunity to join some independent witness, did not take any one into confidence. Case of the prosecution was, thus, rendered doubtful more so when link evidence was also not proper and admissible and sample was not sent to the Chemical Examiner for a sufficiently long period.

I find that contentions of the learned Counsel for the petitioner are well merited. There is no dispute that testimony of official witnesses cannot be discarded simply on account of their official status but where a police officer is present at a specified place with the purpose of checking persons carrying incriminating articles and the place is an inhabited area, them nonjoining of independent witnesses casts some doubt about the genuineness of the case. In the instant case statements of two police officials are not consistent and both are discrepant on material point regarding the handing over of seal after use and deposit of case property with Moharrir Head Constable. A.S.I. Mohan Singh who investigated this case stated that he sealed the sample with his seal bearing inscription MSK and handed over the same to ASI Sat Pal. According to him it was Sat Pal who was also delivered the case property. He did not state that he deposited the case property with Moharrir Head Constable with seals intact., PW2 Jaimal Singh Constable stated that the seal after use was handed over to Constable Krishan Kumar and the case property was brought to the police station by that very constable. There are also some other discrepancies in the statements of these witnesses which too cannot be ignored since they are official witnesses and their testimony is not corroborated by any other independent source.

As regards link evidence the prosecution tendered affidavits of Moharrir Head Constable Mukhtiar Singh Ex. PE and Constable Krishan Lal Ex. PF. Both these affidavits are not properly verified. The deponent had to verify as to which part of the affidavit was true to his knowledge and which part on the basis of information received. In the case of Harjit Singh v. State of Haryana, 1987(2) RCR 217 it was observed :

"The verification of the affidavit is required to be either on knowledge or on information and it should show specifically which part is verified on deponent''s knowledge and which part is verified on deponent''s information. The whole of the affidavit in this case has been verified on the basis of knowledge and information. Such affidavit cannot be taken into consideration. In support a Division Bench judgment of this Court in State of Punjab v. Partap Singh, 1978 C.L.R. 83 is referred to."

In the present case also the verification is not proper since both the deponents deposed that the affidavit was true and nothing had been concealed. Since these affidavits are not properly sworn they do not form legal evidence and cannot be taken into consideration. When this evidence is excluded then there is no guarantee that the sample remained intact and was not tampered with any stage. Conviction of the petitioner was thus liable to be set aside.

As a result I allow this revision petition; set aside the conviction and sentence of the petitioner and acquit him. Fine, if deposited, be refunded to him.