Baldev Singh vs State of Punjab

S.S. Grewal, J.

Baldev Singh petitioner was convicted by the SubDivisional Judicial Magistrate, Barnala on 361988 for recovery of 3 kgs of opium under section 9 of the Opium Act, 1878. He was sentenced by the trial Court to undergo rigorous imprisonment for ten months and to pay a fine of Rs. 200/, or in default to further undergo rigorous imprisonment for one month, vide its order dated 461988. Appeal against the order of conviction and sentence was dismissed by Additional Sessions Judge, Barnala on 11 51989. Aggrieved against the order of conviction and sentence passed by the Courts below, Baldev Singh petitioner has filed the present revision petition.

In brief, facts relevant for the disposal of this case are that on 251983, police party headed by A S.I. Harbans Singh, apprehended the petitioner on suspicion at busstop Dhanaula Khurd and found in his possession 3 kgs, of opium. As the petitioner could not produce any valid licence for retaining opium, he was arrested. After investigation, the petitioner was challaned, convicted and sentenced by the Courts below, as indicated above.

On behalf of the petitioner it was mainly argued that the affidavit of Head Constable Gurbachan Singh Exhibit PG, is defective inasmuch as the said affidavit is not properly verified, and it does not specifically mention as to which particular fact mentioned in the said affidavit was true to the knowlege, and which particular fact was true on the ground of his belief.

On behalf of the State, it was mainly contended that the entire affidavit consists of one para and the police official concerned had mentioned that the contents of the said affidavit were correct on the basis of his knowledge and belief. This affidavit of the Head Constable Gurbachan Singh, Exhibit PG, is defective inasmuch as it does not comply with the provisions of Section 297 of the Code of Criminal Procedure, 1973 wherein sub para (2), it is specifically mentioned that the affidavits shall be confined to and shall state separately, such facts as the deponent is able to prove from his own knowledge, and such facts as he has reasonable ground to believe to be true, and in the latter case, the deponent shall clearly state the grounds of such belief.

In view of the infirmity in the affidavit, of Head Constable Gurbachan Singh referred to above, the same cannot be used as a legal evidence in the instant case The argument advanced on behalf of the State that the defence counsel did not question the deponent concerning the defect in verification of the affidavit referred to above is hardly tenable in the circumstances of the case. It is quite obvious that the link evidence in the instant case is incomplete and as such it cannot reasonably be held that the sample of opium which was sent to the office of Chemical Examiner was actually recovered from the possession of the petitioner.

For the foregoing reasons, the prosecution has failed to bring home charge against the petitioner under section 9 of the Opium Act, 1878 beyond reasonable doubt The orders of conviction and sentence of the Courts below are hereby set aside and the petitioner is acquitted by giving him the benefit of doubt. Fine, if paid, shall be refunded to the petitioner. This petition is allowed accordingly.