Gurdip Singh vs State of Punjab

A.S. Bains, J.

The petitioner was convicted for the offence under section 9 of the Opium Act and sentenced to 11/2 years rigorous imprisonment by the learned Additional Chief Judicial Magistrate, Patiala. On appeal, big conviction and sentence were upheld by the learned Sessions Judge, Patiala. He has challenged his conviction and sentence by way of this petition.

It is alleged the petitioner was apprehended on 26th March, 1979 at about 6 a.m. near Octroi Post, Patiala, by P.W. 1. Dharam Singh ASI and P.W. 2, Harminder Singh Head. Constable. The petitioner had come on a motorcycle from the side of Devigarh when he was apprehended and on his search opium wrapped in a glazed paper was recovered from the iron basket. 10 grams of opium was separated from 6 KGs and 300 Grams, as sample. The sample and the remaining opium were made into separate parcels, which were scaled, and the scat after use was given to Assa Singh P.W. The sample was found to be opium on chemical analysis, A case was registered against the petitioner in police station Kotwali.

The petitioner denied the prosecution allegations when examined under section 313, Code of Criminal Procedure. but did not produce any evidence in defence.

The prosecution case rests on the testimony of PW. 1 Dharam Singh ASI and PW2 Harminder Singh. Assa Singh, an independent witness, was given up by the prosecution as having been won over. Much reliance cannot he placed on the testimony of PW1 Dharam Singh ASI and PW2 Harminder Singh. They have been disbelieved by the learned trial Court in another case of the same day arising out of F.I.R. No. 145 dated 26th March, 1979, against the petitioner and in that case it was alleged by PW1 Dharam Singh A31 that 10 KGs of opium was recovered in pursuance of the disclosure statement made by the present petitioner, and the learned trial Court had appointed a Local Commissioner to go to the place near the taps in the graveyard, from where the recovery was alleged to have been effected, but the Local Commissioner did not find any taps there.

There is another infirmity in the case. The seal after use was given to Assa Singh aforesaid according to PW1 Dharam Singh ASI, but said Assa Singh was not produced and the factum of handing over of the seal after use to Assa Singh is not mentioned in the Zimini as admitted by PW1 Dharam Singh ASI.

Moreover, the affidavits Exhibits PE and PF filed by Parkash Chand and Jagan Nath Constables were also defective inasmuch as the verification is not in accordance with the provisions of section 297 Code of Criminal Procedure. The word `correct'' is not used in the verification. The words used in the verification are :

"I do hereby verify that the aforesaid affidavit has been given by me in full senses and nothing has been concealed therein."

In both the Affidavits, it is not stated by the deponents that the facts stated are correct. Thus the possibility of tampering with the sample cannot be ruled out. No reliance can be placed on the affidavits.

For the reasons recorded. I am of the view that it is not safe to maintain the conviction of the petitioner. He is given the benefit of doubt and acquitted. In the result, the petition is allowed and the conviction and sentence recorded by the Courts below are set aside. The fine, if paid. be refunded to the petitioner, The petitioner is on bail. His bail bonds shall stand discharged.