Kewal Singh alias Keba vs State of Punjab

Harmohinder Kaur Sandhu, J.

Kewal Singh who has filed the present Revision Petition was tried for an offence under Section 9 of Opium Act by Judicial Magistrate Ist Class, Dasuya who vide his judgment dated 10.7.86 held him guilty for the offence and sentenced him to undergo, Rigorous Imprisonment for one year and to pay fine of Rs. 500/. Aggrieved by this judgment recording his conviction Kewal Singh preferred an appeal which was dismissed by the learned Additional Sessions Judge, Hoshiarpur as per judgment dated 8 9.86. The petitioner has assailed his conviction and sentence by way of present Revision Petition.

The prosecution case as set up at trial was as under :

On 4.11.1984, Head Constable Inderjit Singh of Police Station Dasuya was patrolling the area under the supervision of Sub Inspector Balbir Singh. The police party was proceeding towards Gardhiwala in a Government vehicle bearing Registration No. PUH 3163. When they were near the turning of village Daffar the petitioner was seen coming from the side of Gardhiwala. On suspicion he was apprehended and the Head Constable effected his personal search after observing due formalities. On search of a bag which the petitioner was carrying 5 Kilograms of opium was recovered out of which a sample of 20 grams was separated. The sample and the rest of the opium were sealed into two separate parcels and was seized vide recovery memo. Sample was sent to Chemical Examiner for analysis who reported that the contents of the sample constituted opium. A chargesheet was then presented against the petitioner which led to his conviction as referred above.

The prosecution case was supported by Head Constable Puran Singh (PW I), Assistant Sub Inspector Massa Singh (PW2) and Head Constable Inderjit Singh (PW3). Affidavits of formal witnesses Ex. PE, Ex. PF and report of Chemical Examiner Ex. PD were tendered in evidence.

The contention of the petitioner at trial was that he was falsely involved in the case and no opium was recovered from his possession. He examined one witness in his defence.

I have heard Mr. J.B. S. Gill, learned counsel for the petitioner and Mr. A. R. Sidhu, Deputy Advocate General Punjab for the respondent and have perused the record.

Learned counsel for the petitioner assailed the conviction of the petitioner before on the solitary ground that affidavits produced on record sworn by formal witnesses were defective and did not furnish a proper proof of the fact that the alleged sample of opium was never tampered with at any stage till it was analysed by the Chemical Examiner. A reference was made to the affidavits Ex. PE and Ex. PF which were not properly verified. Affidavit Ex. PE was sworn by constable Iqbal Singh and the verification of this affidavit was to the effect that the affidavit was true and correct and nothing was kept concealed. The other affidavit Ex. PF which was affirmed by Constable Trilok Singh was also verified in the same terms. It was urged that it was not specified as to which part of the statement was verified on knowledge and which on information received by each deponent. The affidavit was not proper and link evidence was incomplete. The petitioner was entitled to acquittal on this short ground. The contention of the learned counsel is well merited as affidavits of formal witnesses Ex PE and Ex. PF placed on record are not properly verified and as such cannot be taken into. consideration. In the case of State of Punjab v. Leela Singh, 1991(3) RCR 306 recovery of popy husk was effected and the prosecution produced affidavits of formal witnesses in order to show that the sample of poppy husk was not tampered with. Affidavits however, did not state as which part of the same was correct according to behalf and which part according to knowledge. It was held that prosecution failed to bring home the guilt of the accused by connecting incriminating article with the accused and the accused was acquitted on this ground. Similarly in the case of Balbir Singh v. State of Punjab, 1991(3) RCR 69 the affidavits of formal witnesses were verified on the basis of knowledge and information but it was not specified as to which part of the statements was verified on knowledge and which on information received by each deponent and it was held that there was no evidence to hold that the sample of opium remained intact till delivery to the office of the Chemical Examiner and the prosecution case was not free from reasonable doubt. The accused was acquitted on this short ground.

In the instant case the affidavits of formal witnesses are not properly verified and as such this evidence is to be discarded from consideration. In the absence of link evidence, it cannot be said that the sample taken from the alleged recovered substance remained intact and was not tampered with till it was deposited in the office of the Chemical Examiner. The case of the prosecution is thus rendered suspicious and conviction of the petitioner cannot be maintained.

As a result, I accept this revision petition, set aside the conviction and sentence of the petitioner and acquit him of the offence with which he was charged. Fine if deposited be refunded to him.