Bahal Singh vs State of Haryana

V.S. Aggarwal, J.

The present revision petition has been filed by Bahal Singh (for short `the petitioner'') directed against the judgment and the order of sentence passed by the Judicial Magistrate Ist Class, Hissar dated 16.5.1988 and of the learned Additional Sessions Judge, Hissar dated 13.7.1988. The learned trial Court had held the petitioner guilty of the offence punishable under Section 9 of the Opium Act, 1878 and sentenced him to undergo rigorous imprisonments for six months and to pay a fine of Rs. 500/. In default of payment of fine, the petitioner was to undergo further rigorous imprisonment for two months. The appeal preferred by the petitioner had been dismissed.

The relevant facts of the prosecution case are that on 13.3.1984 at 1.30 P.M. Assistant Sub Inspector Siri Ram in presence of Head Constable Roop Chand and Constable Om Parkash found the petitioner at Rangoi Bridge. Secret information had already been received that a person who is alighted from the bus is in possession of the opium. The petitioner was apprehended as he came from the side of Kulan near the Rangoi Bridge. The search was effected. The petitioner was found in possession of 1 kilogram of opium which he carried in the pocket of his underwear. 50 grams was taken as the sample. The sample and rest of the opium were converted into two separate sealed parcels and sealed with the seal of `SR''. They were taken into possession vide a recovery memo. Ruqa was sent to the police station on basis of which formal first information report was recorded. The representative sample and rest of the opium were deposited in the Malkhana. Subsequently, the representative sample was sent for report of the Chemical Analyst. On receipt of the report that it was opium, the Officerincharge of the Police Station had submitted the report under Section 173, Code of Criminal Procedure.

A charge was framed against the petitioner for the offence punishable under Section 9 of the Opium Act. The petitioner had pleaded not guilty. The prosecution evidence was recorded and after considering the evidence and the statement of the petitioner, the learned trial Court held that the petitioner was in lawful (unlawful ?) possession of opium. Accordingly, holding the petitioner guilty, the order of sentence was passed. In appeal the learned Additional Sessions Judge believed the version of the prosecution and further held that in the facts, it cannot be held that the affidavits filed were defective or that it could be inferred that opium was not recovered from the petitioner. Aggrieved by the said judgment, the present revision petition has been filed.

The first and foremost question that arises for consideration is as to whether it can be held that prosecution has successfully proved the recovery of opium from the person of the petitioner. The evidence of the prosecution revolved around the statements of Sub Inspector Siri Ram PW2 and Head Constable Roop Chand PW1. Indeed they did support the prosecution version so as to state that opium was recovered from the person of the petitioner and inference could be drawn that it was without any licence or permit. Admittedly, no public witness had been joined. It transpired in evidence that the police party was near Rangoi Bridge which is in the area of village Myond Kalan. Being so it was not difficult for the Investigating Officer to fetch the public witnesses.

In the present case in hand, besides the above said fact the affidavit of MHC Bane Singh had been tendered. It is he who has taken the representative sample to the Chemical Examiner. Learned District Attorney did not dispute that it had not been properly verified. Not only that at the time when the affidavit was tendered in evidence under Section 296, Code of Criminal Procedure, the witness was not present for crossexamination. There is nothing to indicate the same on the file. The necessary result would be that the said affidavit cannot be considered in evidence or in other words the link evidence must be taken to be missing.

Reference with advantage can well be made to the decision of this Court in the case of Shaukat Ali v. State of Haryana, 1996(2) Recent Criminal Reports 235 . Herein also it was found that the affidavit of the witness was not properly verified and further the person swearing the affidavit was not present for crossexamination in Court. The affidavit was not taken into consideration and it was held that report of the Chemical Examiner cannot be considered in evidence and the petitioner would be entitled to the benefit of doubt. Same view prevailed with this Court in the case of Zora Singh v. State of Punjab, 1997(4) Recent Criminal Reports 805 . One finds in respectful agreement with the said view point.

As pointed out above herein also the affidavit could not be considered for the reasons recorded in the preceding paragraph. The link evidence is missing. The report of the Chemical Analyst could not be read in evidence or (nor ?) it is not established that opium was recovered and the petitioner thus must be held entitled to the benefit of doubt taking stock of the totality of facts.

For these reasons, the revision petition is allowed. The impugned judgments are set aside. The petitioner is acquitted giving him the benefit of doubt.

Revision allowed.