Salwinder Singh vs State of Punjab

K.P.S. Sandhu, J. (Oral)

The Petitioner was tried, convicted and sentenced to rigorous imprisonment for two years and a fine of Rs. 2,000 in default further rigorous imprisonment for six months, under section 9 of the Opium Act by the trial Magistrate. An appeal was carried to the Court of Sessions where it failed substantially inasmuch as the sentence of imprisonment was reduced from two years to one and a half years. The petitioner came up in revision. The same was admitted by B.S. Yadav, J., vide his order dated 4th May, 1984.

On 2nd October, 1980 SubInspector Gurdev Singh PW 1 while on petrol duty apprehended the petitioner and recovered 35 kg of opium from his possession. Out of that 250 gm. was taken as sample and sent for analysis to the Chemical Examiner who found the same to be opium.

The prosecution evidence consists of the statement of PW 1 Gurdev Singh SubInspector and PW5 Surinder Singh, Head Constable, the two witnesses of the recovery.

The petitioner in his statement under section 313 of the Code of Criminal Procedure denied the prosecution allegations.

Apart from the fact that the prosecution evidence consists of the statements of two officials and a number of discrepancies have been pointed out therein, there is another vital snag in the prosecution evidence. The prosecution tendered in evidence the affidavit of Constable Des Raj, Exhibit PG, where he has averred that he took the sample from the Moharir, Head Constable to the Chemical Examiner and that it remained intact as long as it remained in his custody. It is in evidence that the sample was taken by this witness to the Chemical Examiner on 6th October, 1980. He has appeared as DW1 and has stated in crossexamination that the affidavit was written by the investigating officer on the date when he took the sample. But we find that the affidavit, Exhibit PG, was attested by the Magistrate on 10th November, 1983. It appears that the investigating officer after scribing the affidavit of Des Raj Constable got it attested in routine in the absence of the deponent. Neither was it verified with reference to its contents as required by law nor was there proper identification. So, I hold that the identification of the deponent and the attestation on the affidavit are not in accordance with law and that the affidavit of Des Raj Constable cannot be taken into consideration. In this context Mr. P.S. Mann, Senior Advocate, learned counsel for the petitioner, has placed reliance on a Division Bench authority of this High Court reported as The State of Punjab v. Partan Singh, 1978 C.L.R. (Pb. & Har.) 83; wherein it has been held that affidavits not properly attested in accordance with law are inadmissible in evidence. If the affidavit of Des Raj Constable is kept out of consideration, it cannot be said that the prosecution has proved this important link in the evidence. In this view of the matter, I think that the petitioner is entitled to the benefit of doubt. Consequently, I allow this revision petition and set aside the conviction and sentence of the petitioner. The fine, recovered, shall be refunded to the Petitioner.