Balbir Singh vs State of Punjab

G.S. Chahal, J.

Balbir Singh revisionpetitioner was tried by Sh. U.S. Momi, Judicial Magistrate I Class, Batala for an offence under section 9 of the Opium Act. He was convicted for that offence and sentenced to rigorous imprisonment for 2 years and a fine of Rs. 1,100/ and in default to further R.I. for 4 months. Appeal against his order of conviction and sentence, was heard by the learned Sessions Judge, Gurdaspur who dismissed the same. He has now come to this Court in revision against this order of conviction and sentence.

According to the prosecution case, on 1891982, a police party headed by Head Constable Bhaan an Singh was present near the Link Road in the area of village Kastiwal when the petitioner was seen coming from the opposite direction. His movements having given rise to a suspicion, he was checked and found to be carrying a bag containing 6 kg. of Opium. A sample of 10 gms. was drawn. The sample and the remaining bulk of Opium were separately sealed land taken into possession. A case was got registered. On receipt of the report of the Chemical Examiner, the petitioner was sent up for trial.

The prosecution relied upon the testimony of H.C. Bhajan Singh amd H.C. Karam Singh, as witnesses to the recovery. Recovery memo, report of the Chemical Examiner and the statements of formal witnesses in the form of affidavits were tendered. The petitioner denied the prosecution case and led defence.

A perusal of affidavits of formal witnesses Ex. PE and PF shows that they are not properly sworn. It is not specified therein as to which part of the statements is verified on the knowledge and which on the information received by each deponent. Both these affidavits have been verified on the basis of knowledge and information. Such affidavits cannot be taken into consideration. In support a DB judgment of this court in The State of Punjab v. Partap Singh, 1978 CLR (P&H) 83 is referred to, which was followed by Ujagar Singh, J. in Harjeet Singh v. The State of Haryana, 1987(2) Recent C.R. 217. I subscribe to the above view. The affidavits in this case being not properly sworn have to be rejected and when so discarded from consideration, there is no evidence to hold that the sample of opium remained intact till delivery to the office of the Chemical Examiner. The prosecution case was, thus, not free from reasonable doubt. I hereby accept the revision and after setting aside the conviction and sentence of the petitioner, acquit him of the charge. Fine, if paid, be refunded to him.

Revision accept.