Kewaljit Singh vs State of Punjab

A.S. Nehra, J.

This appeal is directed against the judgment and order dated 11.11.1994 passed by the Additional Sessions Judge, Faridkot, by which Kewaljit Singh, appellant, has been convicted under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo R.I. for a period of 10 years and to pay a fine of Rs.1,00,000/ and in default of payment of fine, to further undergo R.I. for six months.

Briefly stated, the prosecution case is that on February 9, 1993, Inspector Harcharan Singh (PW1), S.H.O. Police Station Sadar, Moga alongwith ASI Sukhdev Singh, Major Singh and other officials was going in Government Gypsy from Safuwala to Daroli Bhai on patrol duty and when the policy party reached near the culvert over the canal minor in the area of village Daroli Bhai, the accused was seen coming on scooter bearing Registration number PB08D4901 from the opposite side, who on seeing the police, tried to take a back turn but he was apprehended on suspicion. Thereafter, the Investigating Officer enquired from the accused about his willingness to be searched before a Magistrate or a Gazetted Officer, but the accused consented to his search by the Investigating Officer himself. On search of the basket of the scooter, opium wrapped in a polythene paper was recovered from a satchel, out of which 10 grams were separated as sample and the remaining quantity on weighment came to 4 Kgs. and 190 grams. Both the sample and the residue opium were made into separate sealed parcels with seal bearing inscription ''HS'' and taken into possession vide recovery memo, Exhibit ''PD''. The Investigating Officer also took into possession the scooter alongwith its registration certificate, Exhibit P3 belonging to the accused, vide recovery memo, Exhibit PE. On further search, driving licence of the accused, Exhibit P4, and currency notes of Rs. 55/ were also recovered, which were taken into possession vide recovery memo, Ex.PF.

Thereafter, the Investigating Officer sent ruqa, Ex.PC to the Police Station, on the basis of which formal FIR Ex.PC/1 was recorded, prepared rough site plan, Ex.PG, of the place of recovery, recorded statements of witnesses, arrested the accused and on return to the police station, deposited the case property with the Moharrir Head Constable with seals intact. After receipt of report Ex.PJ, of the Assistant Chemical EXaminer and completion of investigation, challan was presented against the accused.

To prove its case, the prosecution examined Inspector Harcharan Singh (PW1) and ASI Sukhdev Singh (PW2) who fully supported the prosecution version and gave a detailed account of the manner in which accused was apprehended and contraband in question was recovered from him. Besides, the prosecution also tendered in evidence report, Ex.PJ, of the Assistant Chemical Examiner as also affidavits, Ex.PA and PB, of formal witnesses.

When examined under Section 313, Criminal Procedure Code the accused denied all allegations against him and pleaded his innocence and false implication. He took the plea that, in fact, he was taken away from the house of his sister at village Langeana alongwith his scooter and falsely involved in this case. In his defence, he examined Constable Daljit Singh (DW1).

Learned counsel for the appellant contended that the prosecution had tendered two affidavits, Ex.PA of Constable Binder Pal Singh and Ex.PB of MHC Sukhjinder Singh but the contents of these affidavits were not put to the accused, when he was examined under Section 313 of Code of Criminal Procedure. He further contended that since this link evidence in the form of affidavits was not put to the accused under Section 313, Criminal Procedure Code, therefore, these affidavits could not be considered at all for convicting the accused.

After hearing the learned counsel for the appellant and learned Deputy Advocate General, Punjab, I find force in the argument of the learned counsel for the appellant. The affidavits Ex.PA and PB of Constable Binder Pal Singh and MHC Sukhjinder Singh respectively have not been put to the accused, when he was examined under Section 313, Criminal Procedure Code. Though this is called link evidence, but it is very material piece of evidence to prove that the sample was not tampered with; that after the seizure it was duly sealed and that it was kept intact in the police Malkhana and in the same condition, it was sent to the Chemical Examiner for analysis. As such, this link evidence in the form of affidavits, Ex.PA and PB can''t be considered for convicting the accused. Since, this evidence cannot be considered, the report of the Chemical Examiner, Ex.PJ can also be not read in evidence against the accused.

Accordingly, the appeal is allowed, the conviction and sentence awarded to the appellant is set aside and he is acquitted as he has earned the benefit of doubt. If he is in jail and is not required in any other case, he be set at liberty forthwith. Fine, if deposited, be returned to him.