Gopi Ram vs State of Punjab

Jai Singh Sekhon, J. (Oral)

The appellant was tried and convicted by the learned Additional Sessions Judge Patiala, on a charge for offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of 20 kilograms of poppy husk. He was awarded sentence of rigorous imprisonment for ten years and fine of Rs. 1,00,000/ or in default of payment thereof to further undergo rigorous imprisonment for two and a half years. Feeling aggrieved against his conviction and sentence, he has come up in appeal.

In brief, the facts of the prosecution case are that Assistant Sub Inspector Gurlal Singh (P.W. 3) along with Constable Ranjit Singh (P.W. 1) and other police official, were proceedings from Village Jogewal village Naiwala in the course of usual patrolling. When this party reached near the canal bridge on the Bhakra canal in the area of Village Naiwala, Gopi Ram accused happened to accost. He tried to slip away at the sight of the police party, which resulted in his apprehension. He was found carrying a gunny bag on his head. The gunny bag contained 20 kilograms of poppy husk. A sample of 200 grams of poppy husk was separated and sealed while the remaining poppy husk was also seized after putting in a sealed parcel. The sample of poppy husk was sent to the Chemical Examiner, who vide report (Exhibit P.D.) confirmed it to be of poppy husk due to the presence of morphine and meconic acid therein.

After completion of investigation, the accused was arraigned for trial on such like allegations by submitting the chargesheet before the trial Court.

Before the trial Court, in order to prove its abovereferred case, the prosecution examined Constable Ranjit Singh (P.W. 1) and Assistant Sub Inspector Gurlal Singh (P.W. 3) as witnesses to the actual occurrence while Assistant Moharrir Head Constable Mohinder Singh (P.W. 2) deposed about the registration of First Information Report. Formal evidence of Constable Balbir Singh (No. 1937) and Constable Balbir Singh (No. 906) was tendered on affidavits which were ordered to be read as statements of P.W. 4 and P.W. 5, respectively, as these witnesses were not required for crossexamination purposes by the defence. The report (Exhibit P.D.) of the Chemical Examiner was also tendered in evidence.

The version of the accusedappellant before the trial Court was that of innocence and false implication. In defence, he examined Lakhi Ram (D.W. 1), a covillager, who simply deposed that the accused was apprehended by the police from his village Gulahar at about 2/21/2 A.M. as per information supplied to him by his father and thereafter he accompanied the father of the accused to Police Post Shatrana at 6/7 A.M.

The trial Court, however, believing the prosecution evidence coupled with the report of the Chemical Examiner, convicted and sentenced the appellant, as referred above. The defence version did not find favour with the trial Court.

Mr. Sanjay Majithia, learned counsel for the appellant, inter alia contends that the affidavits of P.W. 4 and P.W. 5 of Constable Balbir Singh (No. 1937), who was at that time working as Moharrir Constable, and Constable Balbir Singh (No. 906) cannot be read in evidence as these are not properly sworn in accordance with the provisions of subSection (2) of Section 297 of the Code of Criminal Procedure. Mr. G. S. Nahar, learned Assistant Advocate General, Punjab, on the other hand, maintains that the legal defect in the affidavits could at the most call for remanding the case for fresh trial; and in view of the gravity of the offence involved, the appellant should not be acquitted on technical defect.

The provisions of subSection (2) of Section 297, Criminal Procedure Code, read as under :

"297. (1) xx xx xx xx

(a) xx xx xx xx

(b) xx xx xx xx

(c) xx xx xx xx

(2) 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.

(3) xx xx xx xx"

A bare glance through these provisions leaves no doubt that the deponent is required to swear as to what facts are within his personal knowledge and what facts in the affidavit are based on his reasonable belief to be true. Strangely enough, in both the affidavits, the affirmation figures to the effect that the facts mentioned in the affidavits have been duly stated by the depondents on the basis of their knowledge and belief. No efforts had been made by either of these two deponents to distinctly state as to which facts were being stated by them on the basis of their personal knowledge and which facts on the basis of their reasonable ground of belief to be true.

In Harjeet Singh v. The State of Haryana, 1987(2) Recent Criminal Reports 217 : 1987 P.A.P. 230 Punjab and Haryana , a learned Single Judge observed as under :

"The verification of the affidavit is required to be either on knowledge or on information and it should show specifically which part of the affidavit 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."

The ratio in Harjeet Singh''s case (supra) was recently approved by the Division Bench of this Court in case State of Punjab v. Dilbagh Singh (Criminal Appeal No. 389DBA of 1989 decided on December 6, 1993).

Consequently, due to the abovereferred legal defect qua the swearing in of affidavits by Moharrir Constable Balbir Singh and Constable Balbir Singh, the contents thereof cannot be read in evidence. If that is so, then the prosecution has miserably failed to prove that the sample allegedly extracted from the poppy husk recovered from the possession of the accused was tested by the Chemical Examiner.

The question then arises whether the case should be remanded from removing this defect in the affidavits or the appellant earns acquittal on this ground. In this regard, it is noteworthy that the recovery of poppy husk was effected on December 13, 1985. Thereafter, the appellant continued facing the pangs or harassment of the pendency of trial. He was convicted by the trial Court on August 16, 1986. This appeal is pending since then. Keeping in view that it is a case of recovery of 20 kilograms of poppy husk and the factum that the appellant has been facing the agony of the pendency of this case against him for about eight years, it is not a fit case for remanding for fresh trial.

Consequently, the order of conviction and sentence of the appellant is set aside by accepting this appeal and acquitting him of the said charge. The bail bonds be discharged.