State of Punjab vs Balbir Singh

A.L. Bahri J, (Oral)

Judicial Magistrate Ist Class, Phagwara, on August, 4, 1981, recorded conviction of Balbir Singh under Section 61(1)(a) of the Punjab Excise Act, and sentenced him to rigorous imprisonment for eight months and to pay a fine of Rs. 1000/. In default of payment of fine he was to further undergo rigorous imprisonment for one month. An appeal was taken against the aforesaid order which was disposed of by Sessions Judge, Kapurthala on January 8, 1980. In appeal an application was filed by the State for leading additional evidence of functionary of the office of the Chemical Examiner by way of link evidence to prove that the sample received in the office of the Chemical Examiner was intact till it was analysed. This request was declined by the Sessions Judge and on merits for want of link evidence the conviction of Balbir Singh was set aside by accepting (sic) come up in appeal against the order of acquittal.

We have beard D.A.G. for the State. The respondent was served in this appeal but nobody has come forward to prosecute the same.

The Sessions Judge rightly declined the request of the State to produce the affidavit of the functionary of the office of the Chemical Examiner in appeal as the lacuna in the prosecution evidence could not be filled in appeal. However, the question for consideration is as to whether there was any lacuna which was to be filled by producing additional evidence. D.A.G. while referring to the report of the Chemical Examiner Exhibit PD has argued that it contained the necessary endorsement that the seals of Exhibit were intact on arrival and agreed to the specimen seal (seal of sample) sent. There is force in the contention of the D.A.G. that in fact the evidence of the functionary of the office of the Chemical Examiner was not at all required. Such a matter was under consideration in a Division Bench of the Court in State of Punjab v. Nachhattar Singh, 1982 Criminal Law Journal 1197. The decision of the Supreme Court in The State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314 was distinguished. We have gone through the judgment of the Supreme Court aforesaid. That was a case where the link evidence as to show the sample of the incriminating article was handled during the stage of deposit in the Malkhana of the Police Station upto the stage of delivery in the office of the Chemical Examiner, was missing. That was not a case where evidence of functionary of the Chemical Examiner''s officer was considered to be necessary. The Division Bench in Nachhattar Singh''s case (supra) further held that the report of the Chemical Examiner to the effect that seals on the sample were intact when it was examined by him was considered to be sufficient safeguard against a mischief that could be perpetrated in the office of the Chemical Examiner. We need not refer to the decisions of the single Bench of this Court which were dealt with in the case of Nachhattar Singh, and which were also relied upon by the Sessions Judge in the impugned order. The judgment of the Sessions Judge thus is not correct as far as this aspect of the case is concerned.

We have gone through the record of the case and we find that the necessary link evidence produced in the present case is not in accordance with law and the prosecution must fail. Reference may be made to three affidavits Exhibit PE, PF and PG of MHC Sarup Singh, Constable Bansi Lal and Constable Surjit Singh respectively. Their evidence is for the relevant stages of handling the sample. The verification of these affidavits is not in accordance with law. It is general in nature that the affidavit aforesaid was correct and true to the best of knowledge and belief. It is not specifically mentioned which part of the affidavit was correct to the knowledge and which part correct to the belief of the deponent. If such evidence is ignored from consideration obviously the prosecution has failed to bring home the guilt and connect the incriminating article alleged to have been recovered in the case, with the accused.

For the reasons recorded above, we find no ground to interfere with the order of acquittal passed by the Sessions Judge. Dismissed.