Zora Singh vs State of Punjab

R.L. Anand, J.

Though the legal point involved in the present petition is small, but its effect is farreaching of the point involved in the present criminal revision. It daily confronts the subordinate Courts and it has also been seen that on account of the nonobservance of the point involved in the present revision, several cases of the prosecution fall on the ground. Though it is not the function of this Court to ask the prosecution to put its own house in order, yet some guidelines are supposed to be given to the subordinate Courts as to how they should admit the statements of formal witnesses, whose statements are being tendered by the prosecution on affidavits.

Zora Singh son of Gurdial Singh son of Harnam Singh, resident of village Bhullarheri, Police Station Dhuri, has filed the present criminal revision and it has been directed against the judgment dated 3rd July, 1987 passed by the Court of Additional Sessions Judge, Sangrur, who upheld the conviction order passed by the trial Magistrate and dismissed the appeal of Zora Singh.

Brief facts of the case are that Zora Singhpetitioner was tried by the Magistrate under Section 9 of the Opium Act for the charge that he was allegedly found in possession of opium weighing 10 kgs. and 600 grams. According to the prosecution story on 31st August, 1984 Vidya Sagar, Inspector (P.W.1), was posted as S.H.O., Police Station, Dhuri and on that day, he along with Head Constable Darshan Singh and other police officials was going in a Government jeep from village Kaulseri to village Bhullarheri on patrol duty. When they reached at a distance of about 100 yards from the Railway Crossing petitionerZora Singh, who was coming from the opposite direction, sat down on his left side on the pretext of urination. On suspicion, the petitioner (Zora Singh) was apprehended and from his personal search, opium weighing 10 kilograms and 600 grams, wrapped in a glazed paper, was recovered from the Jhola, which was hanging on his left shoulder. The accused could not produce any licence or permit. Resultantly, 10 grams of opium was separated as sample and made into a parcel. The remaining opium was made into a separate parcel and both the parcels were sealed with the seal "DS" and were taken into possession vide memo. Exhibit PA attested by the P.Ws. The Thanedar completed all the formalities of the case and the sample of the opium was sent to the office of the Chemical Examiner, who vide report (Exhibit PG) declared the contents of the sample as opium. On the completion of the investigation of the case the accused was challaned under Section 10 of the Opium Act in the Court of the Illaqa Magistrate. Learned Magistrate supplied the copies of the documents to the accused as required under the law. The charge under Section 9 of the Opium Act was framed. It was read over and explained to the accusedpetitioner, who pleaded not guilty and claimed the trial. In order to prove the charge, the prosecution examined Shri Vidya Sagar, Inspector as P.W.1, Head Constable Darshan Singh as P.W.2, and tendered into evidence the report (Exhibit PG) of the Chemical Examiner, besides affidavits Exhibits PH and PJ, respectively of Additional Moharrir Head Constable Karam Singh and Constable Ram Chand. On the closure of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. The offence which was put forth to the petitioner was denied by him and he stated that it was a false case. He further stated that he was brought from village Bhullarheri along with Ajit Singh Pardesi and Amar Singh Kaulseri. Both of them were sent to the jail at Sangrur, whereas the petitioner was falsely implicated in the present case after giving beatings to him. In defence the accusedpetitioner examined Ajit Singh as D.W.1, Amar Singh as D.W.2 and Jag Singh as D.W.3.

Learned Magistrate believed the prosecution version and rejecting the defence story, he convicted the petitioner under Section 9 of the Opium Act and ordered him to undergo rigorous imprisonment for two years. The petitioner was further ordered to pay a fine of Rs. 1,100/. In default of payment of fine, the petitioner was ordered to undergo further rigorous imprisonment for nine months. Not satisfied with the judgment and order of the trial Magistrate dated 14th October, 1985, the petitioner filed appeal in the Court of Additional Sessions Judge, Sangrur, who dismissed the appeal vide judgment dated 3rd July, 1987. Aggrieved by the said judgment, the petitioner has filed the present revision against his conviction and sentence.

I have heard Shri Amarjit Markan, Advocate appearing on behalf of the petitioner, and Shri J.S. Brar, Deputy Advocate General, Punjab, and with their assistance have gone through the record of the case.

The story of the prosecution has been assailed on legal grounds and it has been argued on behalf of the petitioner by his learned counsel that the affidavit (Exhibit PH) of Additional Moharrir Head Constable Karam Singh and the affidavit (Exhibit PJ) of Constable Ram Chand cannot be read into evidence as the learned Magistrate did not comply with the provisions of Sections 296 and 297 of the Code of Criminal Procedure.

I find sufficient force in the argument raised by the learned counsel for the petitioner. The record of the trial Court shows that the statements of these two witnesses (Exhibit PH and PJ) besides the report of the Chemical Examiner (Ex. PG) were tendered into evidence on 18th July, 1985. The statement of Assistant Public Prosecutor runs as follows :

"I tender into evidence PG, PH and PJ and give up the remaining witnesses as unnecessary and close the evidence.

Sd/

A.P.P.

Initialled

J.M.T.C.

18.7.1985."

The above statement would show that no opportunity was ever afforded to the accusedpetitioner to crossexamine the witnesses, whose statements were tendered by the prosecution by way of formal evidence in order to complete the link evidence with regard to the despatch of the sample of the opium to the office of the Chemical Examiner.

Now the point for determination is when the accused has not been given the opportunity to crossexamine the deponents of the affidavits, whether such affidavits can be read into evidence or not. Section 296 of the Code of Criminal Procedure lays down how the evidence of formal character on affidavit can be taken into evidence. According to this section 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. According to subsection (2) of Section 296, Cr.P.C., 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. Thus, it was mandatory on the part of the learned Magistrate to give an opportunity to the accused to crossexamine the witnesses because the admission of the evidence of formal character is subject to all just exceptions. If this procedure has not been adopted by the lower Court, the statement of such deponent becomes meaningless. It is one thing that an accused may not opt to crossexamine the witness whose statement was being tendered by the prosecution on affidavit on the ground that the statement of such witness was of formal character. But the opportunity must be given by the Court to the accused or his counsel as to whether he intends to crossexamine the witness or not and thereafter there must be satisfaction on the part of the Court itself that he has accepted the evidence of a witness because it is of formal character and he has given the opportunity to the opposite party. This procedure has not been adopted by the learned Magistrate on 18th July, 1985 when he accepted the affidavits (Exhibits PH and PJ) into evidence, making these affidavits as inadmissible into evidence and in this manner the link evidence leading to the opinion of the Chemical Examiner, as contained in Exhibit PG of no consequence. The nonreading of Exhibits PH and PJ into evidence would mean a causing of yawning gap as to the handling of the sample of the opium after its seizure by the Investigating Officer till the stage of its examination in the office of the Chemical Examiner. This yawning gap has to be bridged by the prosecution, which was not done in the present case. For this lapse on the part of the prosecution, the benefit has to go to the accused. Faced with this situation, I would like to give a specimen for the benefit of the subordinate Courts how the statement of a witness of formal character should be accepted on affidavit. The trial Court at the first instance should record the statement of Additional Public Prosecutor/Public Prosecutor/Assistant Public Prosecutor, who should state ordinarily in the following terms :

"I tender into evidence the statement of witness(es), whose statement(s) is/are of formal character."

After recording the above statement, endeavour should be made by the trial Court to record the statement of the accused and his counsel on the following lines :

"I do not want to crossexamine the witness(es) whose statement(s) is/are being tendered by the prosecution on affidavit(s)".

In case the accused does or does not want to crossexamine the formal witnesses, order must be passed by the trial Court that the prosecution has tendered into evidence the affidavit(s) of such and such witnesses, whose statements are of formal character and the accused party does not want to crossexamine the said witnesses in spite of the opportunity afforded to it for the purpose of crossexamination. The adoption of above lines, in my opinion, is the exact compliance of the provisions of Section 296(1) of the Cr.P.C. Even thereafter the accused or the prosecution has the right to make an application to the Court for summoning and for examination of such person as to the facts contained in the affidavit.

It was then submitted by the learned counsel for the petitioner that in this case even the affidavits (Exhibits PH and PJ) cannot be read into evidence as these affidavits do not conform to the provisions of Section 297(2) of the Code of Criminal Procedure. Again there is merit in this contention of the learned counsel for the petitioner. According to Section 297(2), Cr.P.C., the affidavits shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, and in the latter case, the deponent shall clearly state the grounds of such belief. This observation of mine also gets strength from a judgment reported as Harjeet Singh v. The State of Haryana, 1987(2) R.C.R. (Crl.) 217 : 1988(1) C.L.R. 81, wherein it was held as follows :

"The verification of the affidavit is required to be either on knowledge or on information and it should show specifically which part of the affidavit it verified on deponent''s knowledge and which part is verified on deponent''s information. The whole of the affidavit in this case has been verified on the basis of knowledge and information. Such affidavit cannot be taken into consideration."

If the affidavits Exhibits PH and PJ are read in the light of the above observations, it would show that Shri Karam Singh and Shri Ram Chand had simply stated that the contents of the affidavits given above are based on their knowledge and belief. These affidavits have not even been sub paragraphed which ordinarily should be though these guidelines are not mandatory. The entire object of this exercise is that the affidavits so tendered by the prosecution must conform to the provisions of Section 297(2), Cr.P.C., and to the High Court Rules and JUDGMENTs as contained in Chapter 12B of Vol. IV. If the affidavits Exhibits PH and PJ are held to be inadmissible due to the noncompliance of Section 296 and Section 297(2), Cr.P.C., it has to be held that the prosecution has not led any evidence to show as to when the sample of the opium was deposited in the Malkhana and when it was sent to the office of the Chemical Examiner. With the missing of the important link evidence from the record, it has to be held that the prosecution has not been able to prove the charge beyond reasonable doubt and in this eventuality, the benefit of doubt has to go to the petitioner. From the side of the State the legal propositions, referred to above, have not been successfully contradicted, though a faint attempt has been made in order to show that the affidavits Exhibits PH and PJ are legal.

Resultantly, the revision petition succeeds, the judgments and orders of the Courts below are set aside and the revision petitioner stands acquitted of the charge. He stands discharged from the bail bonds. The fine, if any, realised from the petitioner shall be refunded to him.

Since some guidelines have been given to the trial Courts with regard to the mode of taking evidence of the witnesses, whose statements are of formal character, I would direct the Registry to send copy of this judgment to the District and Sessions Judges of the States of Punjab and Haryana and also of Union Territory, Chandigarh, who in turn shall circulate the judgment amongst the Judicial Officers of their respective Sessions Division. Before doing so, the Registry is directed to obtain formal orders from Hon''ble the Chief Justice.