State of Punjab vs Chanan Singh

S. D. Bajaj J.

Chanan Singh respondent was found in conscious physical possession of 5 kgs 10 grams of opium on June 31184. After getting the sample tested from the Chemical Examiner vide his report Exhibit PD Khem Karan Police prosecuted him under section 9 of the Opium Act. Vide its judgment dated October 14, 1985 learned trial court convicted the accused of the commission of the offence under section 9 of the Opium Act, 1878 and sentenced him to undergo rigorous imprisonment for a period of two years and to pay Rs. 2000/ as fine for his conviction aforesaid. In default of payment of fine respondent was ordered to undergo rigorous imprisonment for a further period of 6 months. In appeal, learned Additional Sessions Judge, Amritsar, lower Appellate Court, gave to the respondent the benefit of doubt and acquitted him. Feeling aggrieved, from the lower Appellate Court''s judgment of acquittal State of Punjab has filed in this Court Criminal Appeal No. 106 DBA of 1987.

We have heard Shri S.S. Kang, DAG Punjab for the appellant State, nemo for the respondent in spite of due service and have perused the relevant material on record very carefully.

Four reasons assigned by the learned trial court for recording acquittal of the respondent are (i) link evidence affidavits Exhibit PE and Exhibit PF of Constable Waryam Singh and Mukhtiar Singh respectively are not duly attested; (i) official witnesses Constable Santokh Singh PW1 and Head Constable Amrik Angh PW2 did not assert that they deposited the sample with Moharrar Head Constable, Khem Karan, on return to the Police Station after investigation and that the sample was sent to the Chemical Examiner for analysis; (iii) that a copy of the First Information Report was never sent to the Ilaqa Magistrate with the result that police could tamper with it at convenience; and (iv) that the material discrepancies and contradictions between the depositions of official witnesses alone produced in the court discredits their testimony and renders the prosecution case set up against the accused to be doubtful in nature and of a suspicious character.

Affidavits Exhibit PE and Exhibit PF do not bear the seal of the court of Judicial Magistrate 1st Class, Tarn Taran who actually attested them and in whose court these were produced. The seal is of Executive Magistrate who did not admittedly attest them. In terms of the observations made in Jarnail Singh v. State of Punjab, 1988 Criminal Law Times 426 learned lower Appellate Court rightly observed that both these affidavits could not be admitted into evidence to prove the officials acts narrated by the deponents therein as having been duly performed by them.

Link evidence regarding deposit of the sample with Moharrar Head Constable, Police Station, Khem Karan, immediately on return of the investigating officer thereto and its despatch to Chemical Examiner is also missing. A report of the Chemical Examiner cannot be of any use as evidence unless there is proof of the identity of the articles sent to the Chemical Examiner with the articles examined by him. Therefore, the trial Court ought to have recorded evidence to prove that the article analysed by the Chemical Examiner was actually the article sent to him for analysis. It must have insisted on production of such evidence before it and ought not to have accepted the report in evidence until the connecting links requisite to render it admissible were established. The failure of the prosecution to adduce such evidence is not a mere technical defect but operates to vitiate the trial. In this view of the matter the finding of acquittal recorded by the learned trial Court is affirmed.

Subsection (1) of S. 157 of the Criminal Procedure Code, reads

"157. Procedure for investigation (i) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person. or shall depute one of his subordinate officers not being below the rank as the State Government may by general or special order, prescribe in this behalf to proceed to the spot, to investigate the facts and circumstances of the case, and if necessary to take measures for the discovery and arrest of the offender."

The section is mandatory and the sending of the occurrence report is a subject which is an essential preliminary to an investigation. The failure lure to send such report is a serious neglect which obviously results in failure to justice because it renders the police open to suspicion of concocting false evidence.

In para 12 of its impugned judgment learned lower appellate Court observed :

"There are material discrepancies and contradictions in the statements of PWs Santokh Singh and H.C. Amrik Singh. The trial Court treated these contradictions not material. In the instant case where the prosecution has chosen to prove the case by the official witness alone, the credibility of these witnesses can be judged only on the touch stone of discrepancies and contradictions and by no other method PW2 H.C. Amrik Singh deposed that Jhola and other articles were already with him where as in the statement of PW1 Santokh Singh, this is not so. The other discrepancy pointed out by the learned counsel for the appellant is that PW I Santokh Singh says that appellant did not try to run away on seeing the police party whereas in the statement of PW2 H.C. Amrik Singh, it has been deposed that appellant tried to run away from the place of occurrence seeing the polite party. PW2 H.C. Amrik Singh further deposed in his statement that he mentioned the particulars of the case on the Jhola which was recovered at the time of recovery, but Jhola produced in the court is without any particulars. These discrepancies and contradictions which are noticed cannot be termed as immaterial when the case solely rests on the evidence of official witnesses.

We see no ground to differ from the conclusion recorded by the learned lower Appellate Court in this regard. Its finding being based on cogent convincing and tangible reasoning, we affirm it.

For the reasons given above there is no merit in the appeal filed by the State. Dismissed.