Gurnam Singh. vs State of Punjab

Harmohinder Kaur Sandhu, J.—Gurnam Singh petitioner was held guilty for an offence under Section 9 of the Opium Act after trial by Shri O.P. Goyal, Judicial Magistrate 1st Class, Zira and was sentenced to undergo rigorous imprisonment for 21/2 years and to pay a fine of Rs. 2000/ He filed an appeal against this judgment which was dismissed by Shri K. R. Mahajan, the learned Sessions Judge, Ferozepur as per judgment dated 2651986 after the sentence of imprisonment was reduced to two years. The present revision petition is directed against this judgment.

The prosecution case against the petitioner was that on 29.1.1982 A. S. I. Harbans Lal was on patrol duty along with other police officials when in the area of village Pipli Miani he apprehended the petitioner on suspicion and conducted his personal search. The petitioner was found, in possession of 5 kilograms of opium which he was carrying in a gunny bag. Sample weighing 20 grams was separated and both the sample and the remaining opium were sealed into two packets. Case was got registered against the petitioner vide ruqa Ex. PB. Sample was sent to the Chemical Examiner who submitted his report Ex. PD.

The case of the prosecution was supported by A.S.I. Harbans Lal and Constable Prem Pal Singh. Affidavits of formal witnesses Ex. PE. and Ex. PF. were also tendered in evidence.

The contention of the petitioner at trial was that he was not on good terms with one Chanan Singh, who got him falsely implicated in this case and he was never found in possession of any opium. One Amar Singh Lambardar was examined in defence according to whom the petitioner was taken away by the police from his house and nothing incriminating was recovered from his possession

I have heard the counsel for the parties and have perused the records.

Learned counsel for the petitioner referred to the affidavits Ex. PE and Ex. PF and contended that the affidavits were not properly attested and were defective, so the same should not be taken into consideration and in this way the link evidence in the case was missing.

A perusal of the affidavit Ex. PE. which is of Moharrir Head Constable Wassan Singh shows that he verified the affidavit as true according to his knowledge and belief. Affidavit Ex. PF is sworn by Constable Sukhdev Singh who took the sample to the office of Chemical Examiner and deposited it there. The verification of this affidavit is to the effect that it was true and correct. These affidavits are not properly sworn as it is not mentioned as to which part of the statement is verified on knowledge and which on the basis of information received by each deponent. Ex. PF is not verified on the basis of knowledge or information. In the absence of proper verification the affidavits cannot be taken into consideration. In the case of Harjit Singh v. The State of Haryana, 1987(2) Recent Criminal Reports 217 the affidavits which were not properly sworn were rejected. Similar view was taken in the case of Balbir Singh v. The State of Punjab, 1991(3) Recent Criminal Reports 69 and State of Punjab v. Leela Singh, 1991(3) Recent Criminal Reports 306 . In this later authority it was held :

"Ex. PE is the affidavit of MHC Darbara Singh and Ex. PF is the affidavit of constable Sukhdev Singh. Both these affidavits bear the verification that the contents of the affidavits were correct. It is not mentioned therein which part of the affidavit was correct according to the knowledge and which part according to belief. Thus the affidavits are ignored from consideration and the link evidence is missing."

In view of these authorities the affidavits Ex. PE and Ex. PF can not be taken into consideration and there is no other evidence to hold that the sample of opium remained intact till it was delivered in the office of the Chemical Examiner. Conviction of the petitioner cannot be sustained in these circumstances.

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