Criminal Revision No.219 of 1990 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.219 of 1990 Date of Decision: 23.04.2008. Iqrar Ahmed .......Petitioner versus State of Punjab .......Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr.Sandeep Mann, Advocate, for the petitioner. Mr.Mehardeep Singh, AAG, Punjab. *** KANWALJIT SINGH AHLUWALIA, J.(Oral) The present revision petition has been filed by Iqrar Ahmed- petitioner who was convicted and sentenced by the Court of Sub Divisional Judicial Magistrate, Khanna, vide his judgment and order dated 03.03.1989 under Section 9 of the Opium Act to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for three months. On 01.03.1990, appeal filed by the petitioner was dismissed by the Court of Additional Sessions Judge, Ludhiana. On the basis of ruqa Exhibit PB, FIR No.89 dated 09.07.1985 was registered at Police Station, City Khanna. Vide ruqa Exhibit PB, it was stated by Rajinder Singh, Inspector that he was present along with his companion officials near octroi post Samrala road when Joginder Singh son of Sher Singh appeared and at that moment, one person was found coming from the opposite side, who on seeing the police party attempted to turn back and was apprehended on suspicion. On interrogation, the petitioner disclosed his name as Iqrar Ahmed son of Chhote Baksh, resident of Prem Rajpur, Police Post Bareilly(U.P.). The search was Criminal Revision No.219 of 1990 2 conducted and from his bag, 9 kg. opium was recovered. The FIR was investigated and a report under Section 173 Cr.P.C. was submitted. The petitioner was charged under Section 9 of the Opium Act. Prosecution examined retired Insepector, Rajinder Singh-PW- 1, who reiterated the allegations levelled in the FIR. He was cross- examined to the effect that Joginder Singh was known to him earlier. It was so stated by him, but he denied that Joginder Singh was a witness in other cases. The instances of the cases were put to him but the witness feigned ignorance. The witness has also been cross-examined regarding the weight, scale requisitioned and quantity of opium at the spot. The witness admitted that the road was a thoroughfare and number of persons were available but no person was willing to join except Joginder Singh. PW-2, Head Constable-Darshan Singh corroborated Rajinder Singh-PW-1 regarding the search and seizure of the recovery of the opium. Affidavits and the report of the Chemical Examiner were tendered to prove the evidence. Statement of the accused was recorded under Section 313 Cr.P.C. In his defence, he examined DW-1, Constable Hakam Singh. He was cross-examined regarding his affidavit-DA submitted by him regarding deposit of the sample for chemical examination. DW-2 Head Constable, Surinder Singh was also cross-examined regarding affidavit- PG. Thereafter, the accused closed his evidence. Learned counsel appearing on behalf of the petitioner states that affidavits PG and DA are not in confirmity with the High Court Rules and Orders. He has relied upon a Division Bench judgment of this Court reported as State of Punjab versus Leela Singh, 1991(3) RCR 306 in which it was held that if the affidavits do not state which part of the affidavit is correct according to the knowledge and which part according to belief, thus, the affidavits cannot be taken into consideration and the link evidence is missing. This view has further been reiterated by a Single Bench of this Criminal Revision No.219 of 1990 3 Court in Balbir Singh versus State of Punjab, 1991(3) RCR 69. He further relies upon Harjeet Singh versus The State of Haryana, 1987(2) RCR 217 in which it was held which is as under:- “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 is 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. In support, a Division Bench judgment of this Court in The State of Punjab versus Partap Singh, 1978 C.L.R.(Pb. & Har.) 83 is referred to. Excluding the affidavit of Karan Singh, A.S.I., Exhibit P.X., we are left with no evidence as to when this sample of the opium was deposited in the Malkhana and when it was sent for chemical analysis. Such an important link of evidence is missing and exclusion of this affidavit goes to the root of the case. The petitioner is entitled to benefit of doubt on this score”. Since, in both the affidavits, verification is not in accordance with the High Court Rules and Orders, the affidavits cannot be read into evidence as it has not been stated that which part of the affidavit is verified on the basis of knowledge and which part on the basis of information. Once affidavits are excluded, prosecution suffer from proving link evidence, regarding safe custody, deposit and sending of samples intact to chemical examiner. Accordingly, no other option is left with this Court except to acquit the petitioner. Accordingly, the present revision petition is allowed and the petitioner is acquitted of the charges framed against him. April 23, 2008 (KANWALJIT SINGH AHLUWALIA) seema JUDGE