Hardeep Pal vs State of Punjab

Amar Dutt, J.

Through this petition Hardeep Singh is seeking to challenge the judgment dated 13.7.1988 of the Additional Sessions Judge, Ludhiana dismissing his appeal against the conviction and sentence recorded by the Judicial Magistrate, Ludhiana for contravention of the provisions of Section 9 of the Opium Act.

On 29.8.1984 at about 9.00 P.M., the petitioner was apprehended at Naka set up by HC Balbir Singh and HC Jarnail Singh and other police officials of Police Station Kotwali, Ludhiana. From the bag which was carried by the petitioner, 4 kgs. and 500 Gms. of Opium was recovered out of which a sample of 5 Gms. was separated and after getting it sealed, the same was forwarded to the Chemical Examiner who through report Ex. PE opined that it was opium. A case was registered under Section 9 of the Opium Act and on completion of the investigation, challan was put in against the petitioner, After trial, the Judicial Magistrate had sentenced the petitioner to undergo rigorous imprisonment for two years and to pay fine of Rs. 2500/ and in default of payment of fine to further undergo rigorous imprisonment for six months. The appeal was dismissed by the Additional Sessions Judge, Ludhiana, who like the trial Court rejected the argument that the testimony of HC Balbir Singh and HC Jarnail Singh should be rejected on the ground that they were official witnesses and the failure of the investigating agency to join independent witnesses at the time of recovery should be taken as a circumstance against the case of the prosecution.

In the revision, the sole ground on which the conviction is being sought to be challenged is the fact that the affidavits Exs. PG and PF filed by HC Jasmel Singh and HC Nirvair Singh to prove the safe custody of the sample and its having not been tampered with during the period which elapsed between its recovery and its receipt in the office of the Chemical Examiner have to be ruled out of consideration on account of the fact that they do not indicate as to which part of their statement has been made on the basis of knowledge and which part is on the basis of the belief of the deponent as is required by the provisions of Section 297(2) Cr.P.C. In consequence of this discrepancy, there being no proof of the safe custody of the sample as also whether the sample was in fact the same sample which was analysed, the report of the Chemical Examiner will have to be ruled out of consideration and this would result in the acquittal of the petitioner.

I have carefully considered the arguments advanced on behalf of the petitioner and the learned counsel appearing on behalf of the State.

Section 297(2) of the Code of Criminal Procedure lays down as under :

"(2) Affidavits shall be confined to, and shall state separately, such facts as the dependent 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."

The affidavit which does not specifically mention as to which particular fact mentioned therein was true to the knowledge and which particular fact was true on the ground of the dependent''s belief would be defective as it did not comply with the provisions of Section 297 and hence it could not be used as legal evidence.

On the basis of these provisions, judicial precedents have consistently indicated that an affidavit which does not specify which part of the statement is verified on knowledge and which part on the information received by the dependent has to be ruled out of consideration. This is so held by this Court in Kewal Singh v. State of Punjab, 1994(1) RCR 243. To the same effect is the view taken in the cases of Balbir Singh v. State of Punjab, 1991(3) RCR 69 and State of Punjab v. Leela Singh, 1991(3) RCR 306. In all these cases, it was not specified as to which statements contained in the formal affidavit by the witnesses were verified on knowledge and which part thereof was verified on the information received by each dependent and therefore, it was observed that there was no evidence to hold that the samples sent for examination in the office of the chemical examiner had remained intact and therefore, prosecution case was no free from reasonable doubt. The position in the present case is no different. The defect in the affidavits Ex.PG and PF filed by HC Jasmel Singh and HC Nirvair Singh precludes me from relying upon this evidence and because of that I have no option but to hold that there is break in the chain of evidence as there is no evidence to indicate that the sample deposited with M.H.C. Hansraj Singh remaine untampered till it reached the chemical examiner. This break in the chain of evidence would entitle the petitioner to the benefit of doubt and his consequent acquittal.

For the reasons recorded above, this revision petition succeeds. The conviction and sentence imposed upon the petitioner is set aside and he is acquitted of the charge against him. His bail bonds be discharged.