Ravel Singh vs The State of Punjab

A.D. Koshal, J.—By this judgment I shall dispose of four petitions u/s 439 of the Code of Criminal Procedure, being Criminal Revisions Nos. 624, 626, 658 and 661 of 1972 in which a common question of law has been raised and in each one of which the petitioner seek! the revision of the judgment of an Additional Sessions Judge dismissing his appeal against his conviction of an offence u/s 9 of the Opium Act and the sentence imposed upon him in consequence.

In Criminal Revision No. 624 of 1972, the petitioner is Rawel Singh, aged 45 year''s, a resident of Patiala. He was said to have been apprehended on the 16th December, 1970, by Head Constable Surjit Singh and to have been found in possession of 300 grams of opium. The fact that the substance recovered from him was opium was sought to be proved at the trial by means of affidavits, Exhibits PE and PF. The former purports to be a statement on oath by Baldev Krishan, Constable No. 856, and the latter by Joginder Singh, Constable No. 262, of the C.I.A Staff, Patiala, The contents of these affidavits, in a nutshell, were that a sample of the substance recovered from the petitioner remained in the custody of the deponents till it reached the Chemical Examiner who found it to be opium. Each of the affidavits bears the signature of the deponent the signature of a Prosecuting Sub Inspector underneath the word "Identified" and the signature and designation, of Shri Baldev Singh, Judicial Magistrate II Class, Patiala, underneath the word "Attested".

The petitioner was tried by Shri Niranjan Singh Judicial Magistrate 1st Class; Patiala, was convicted as aforesaid and was sentenced to rigorous imprisonment for six months as well as a fine of Rs. 100/-, the sentence in default of payment of fine being rigorous imprisonment for two months. His appeal was'' dismissed on the 29th June, 1972 by Shri Dev Raj Saini, Additional Sessions Judge, Patiala.

The Petitioner in; Criminal Revision No. 626 of 1972 is Jaga Ram, aged 22 years, a resident of Maur Mandi, from whose possession opium weighing 8 kilograms is alleged to have been recovered on 14th February, 1970, by Sub-Inspector Sarmukh Singh of Police Station, Maur. In this case also, two affidavits were produced in order to show that a sample of the commodity recovered from the possession of the petitioner reached the Chemical Examiner, who found the same to be opium, in fact. Those affidavits are Exhibits P.W. 3 and P.W. 4 and each one of them bears the signature of a Judicial Magistrate 1st Class below the word "Attested".

The petitioner was tried by Shri Sarwan Singh Chahal, Judicial Magistrate 1st Class, Bhatinda, was convicted as mentioned earlier and was sentenced to rigorous imprisonment for two years and a fine of Rs. 2000/-, the sentence in default of payment of fine being rigorous imprisonment for four months. His appeal was dismissed by Shri Raj Kumar Sharma, Additional Sessions Judge, Bhatinda, on the 23rd June, 1972.

The petitioner in Criminal Revision No, 658 of 1972 is Surjit Singh, aged 20 years, a resident of village Ghanpur Kale. In his case also, the sample analysed by the Chemical Examiner and found to be opium, was sought to be connected with the seized commodity by means of two affidavits which are Exhibits PE and PF. Each of them bears the certificate :--

I identify the deponent and he had signed in my presence.

The certificate bears the signature of a Prosecuting Sub-Inspector. Each of the affidavits also bears another certificate in the following terms :--

R.O. and attested.

This certificate purports to bear the signature of a Magistrate of the First Class.

The trial of the petitioner ended in his conviction by Shri Hari Ram, Chief Judicial Magistrate, Jind, who sentenced him to rigorous imprisonment for two years and a fine of Rs. 500/-, the sentence in default of payment of fine being rigorous imprisonment for six months. His appeal was dismissed on the 23rd May, 1972 by Shri R.L. Garg, Additional Sessions Judge, Jind.

The petitioner in Criminal Revision No. 661 of 1972, is Romesh Kumar, aged 40 years, a hawker of Amritsar City. The opium alleged to have been recovered from him weighed 1 kilogram and 10 grams. In order to show that the sample found by the Chemical Examiner to consist of opium, was taken from the commodity recovered from the petitioner, affidavits Exhibits PE and PF were produced at the trial. Each of them bears the signature of the Chief Judicial Magistrate, Amritsar, under the word "Attested".

The petitioner was convicted as aforesaid by Shri Pirthipal Singh Grewal, Chief Judicial Magistrate. Amritsar, who sentenced him to rigorous imprisonment for nine months. His appeal was dismissed by Shri N.S. Bhalla, Additional Sessions Judge, Amritsar, on the 5th July, 1972.

The contention raised On behalf of each of the petitioners is that the affidavits above mentioned are no affidavits in the eye of law inasmuch as none of them bears any certificate to the effect that the statement contained therein was declared before a Magistrate as required by law and that the word "Attested" or the words "R.O. and attested" cannot be taken to constitute a certificate of the requisite type. Reference in this connection has been made to the provisions of sections 510A, 539, 539AA and 554 of the Code of Criminal Procedure and to paragraphs 11 to 15 Part B of Chapter 12 contained in Volume IV of the Rules and Orders of this Court, which bears that title "Instructions applicable to both Civil and Criminal Courts" as also to Forms II, II-A and II-B being part of the said chapter. These provisions may be reproduced here with advantage. Sections of the Code of Criminal Procedure:

510A. (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, and shall, on the/application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.

Affidavits; and affirmations to be used before any High Court or any officer of such Court may be sworn and affirmed before such Court or the Clerk of the State, or any Commissioner or other person appointed by such Court for that purpose, or any Judge, or any Commissioner for taking affidavits in any Court of Record in India, or any Commissioner to administer oaths in England or Ireland, or any Magistrate authorised to take affidavit or affirmations in Scotland.

539AA. (1) An affidavit to be used before any Court other than a High Court u/s 510A or section 539A may be sworn or affirmed in the manner prescribed in section 539 or before any Magistrate,

(2) The Court may order any scandalous and irrelevant matter in the affidavit to be struck out or amended.

(1) With the previous sanction of the State Government, any High Court, not being a Court of the Judicial Commissioner, may, from time to time, make rules for the inspection of the records of subordinate Courts.

(2) Every High Court not being a High Court to which subsection (1) applies may, from time to time, and with the previous sanction of the State Government,--

(a)make rules for keeping all books, entries and accounts to be kept in all Criminal Courts subordinate to it, and for the preparation and transmission of any returns or statements to be prepared and submitted by such Courts;

(b)frame forms for every proceeding in the said Courts for which it thinks that a form should be provided ;

(c)make rules for regulating its own practice and proceedings and the practice and proceedings of all Criminal Courts subordinate to it, and

(d) make rules for regulating the execution of warrants issued under this Code for the levy of fines :

Provided that the rules and forms made and framed under this section shall notbe inconsistent with this Code or any other law in force for the time being." Provisions of......Part B of Chapter 12 above mentioned :

Every person making an affidavit shall, if not personally known to the Court, Magistrate or other officer appointed to admimister the oath or affirmation, be identified to such Court, Magistrate or officer by some person known to him, and such Court, Magistrate or officer shall specify, at the foot of the affidavit, the name and description of the person by whom the identification is made, as well as the time and place of the identification and of the making of the affidavit.

The Court, Magistrate, or other officer as aforesaid, before whom an affidavit is made, shall certify at the foot of the affidavit the fact of the making of such affidavit before him, and shall enter the date and subscribe his signature to such certificate, and shall, for the purpose of identification, mark, date, and initial every exhibit referred to in the affidavit. The name of the verifying authortiy must be signed in full, and care must be taken that his proper designation as a Civil Court or Magistrate is added.

An affidavit purporting to have been made by a female declarant, who has not appeared unveiled before the Court, Magistrate, or other officer as aforesaid, before whom the affidavit is made, shall not be certified, unless and until she has been duly identified before, and an affidavit of her identity by the person identifying her has been made before, and certified by such Court, Magistrate or officer.

If any person making an affidavit appears to the Court, Magistrate or other officer administering the oath or affirmation, to be ignorant of the language in which it is written, or to be illiterate, or not fully to understand the contents of the affidavit, such Court, Magistrate or officer shall cause the affidavit to be read and explained to him in a language which both he and such Court, Magistrate or officer understand either doing so himself, or causing another person to do so in his presence. When an affidavit is read and explained as herein provided, such Court, Magistrate or other officer as aforesaid shall certify in writing at the foot of the affidavit that it has been so read and explained, and that the declarant seemed perfectly to understand the same at the time of making it.

Every affidavit shall be signed or marked and verified at foot by the deponent and attested by the Court, Magistrate or other officer administering the oath or affirmation. Every page of the affidavit shall be signed by the deponent and initialled by the attesting Officer. The verification by the deponent shall be in one of the forms attached hereto, and shall be signed or marked by the deponent. The attestation of the Court, Magistrate or other officer administering the oath or affirmation shall also be in the form prescribed below.

II......Form of Certificate (Vide paragraphs 12, 14 and 15 above).

Certified that the above was declared on (a)............before me this (b)......................day of (c)...............19, at (d)..............in the district of (e)...............by (f)........................who is (g)............

(full signature) A. B.

(Office) District Judge (or as the case may be) of.....................

(a)here enter oath/affirmation as the case my be.

(b)date,

(c)month,

(d)place,

(e)name of district.

(f)full name and description of declarant,

(g)here enter '' personally known to me" or "identified at (time and place of identification) by (full name and description of person making the identification) who is personally known to me.

II�A

The exhibits marked A, B, C (as the case may be) above referred to are annexed hereto under this date and my initials."

II�B

Certified further that this affidavit has been read and explained to (name)......................the declarant who seemed perfectly to understand the same at the time of making thereof.

7.It would be seen that section 510A allows evidence of a formal character to be given by affidavits, but then an affidavit contemplated by that section has to be sworn as prescribed in section 539 or before a Magistrate. The manner in which it has to be sworn is specified in paragraphs 11 to 15 and the forms extracted above. It is true that it does not appear from the provisions of Chapter 12 aforesaid that the various paragraphs contained therein amount to rules framed by the High Court under the powers conferred on it by sub-section (2) of section 554, but even if they are merely in the nature of instructions, they would have to be substantially complied with in the case of an affidavit which is to be accepted at a trial in pursuance of the provisions of section 510A. The word "Attested" or the words "R-O. and attested'' appearing on the various affidavits produced in the four cases under examination cannot be taken to mean that the deponent concerned who appeared before the attesting officer, was known to him or was identified by some body and declared that the statements made in the affidavit were his own. It is true that if the deponent does not state the facts contained in the affidavit either upon oath or on solemn affirmation, the affidavit could not be thrown out for that reason alone in view of the provisions of section 7 of the Oaths Act, 1969, which runs thus :

No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.

but then it must appear from the certificate of the attesting officer that he had satisfied himself about the identity of the deponent and that the deponent had owned the statements contained in the affidavit. That is the least which an attestation must show. In the absence of such an attestation, the Court has no material from which it may Judge as to whether the so-called affidavit is an affidavit at all. In fact, there would be no guarantee even of the identity of the deponent if such an attestation is lacking.

A similar view was taken by Tuli, J., in Som Nath v. The State 1973 Ch LR 166, which was followed by Gujral and Tewatia, JJ., in Babu Ram v. The State, 1974 Ch LR 100 and by Pattar, J., in Des Raj v. The State of Punjab CR No. 937 of 1973, decided on 28th February, 1974.

In the above view of the matter, none of the affidavits produced in the four cases before me can be said to meet the minimum requirements of a proper attestation. All of them must, therefore, be rejected as being no affidavits in the eye of law and be held to have been improperly received in evidence. And once they cease to be regarded as evidence, the Court is not left with any material connecting the report of the Chemical, Examiner in each case with the commodity seized from the petitioner concerned.

In the result, all the four petitions succeed and are accepted. The conviction recorded against and the sentence imposed upon each of the petitioners is set aside and he is acquitted of the charge.