PURAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Petitioner in this revision petition assails judgment dated 21.01.1988 passed by Sub Divisional Judicial Magistrate, Zira, convicting him of offence punishable under section 9 of the Opium Act, 1878 for his having been found in possession of 20 Kgs. of opium in the area of Aminwala on 13.02.1983 and was sentenced to rigorous imprisonment for 2.1/2 years and to pay a fine of Rs. 2000/-; in default of payment of fine to further undergo rigorous imprisonment for six months. The appeal against the aforesaid judgment was dismissed by Additional Sessions Judge, Ferozepur, vide judgment dated 01.07.1988.

(2.) In this revision petition, the learned counsel for the petitioner has highlighted the illegality in the procedure which adversely affected and prejudiced the defence of the petitioner. Besides that, recovery is not supported by any independent witness although there was sufficient opportunity with the police party to join some independent witness. The case property when produced in the trial Court could not be related to the alleged recovered constraband from the accused because the tin produced did not have any seal neither any case or FIR number besides the plea of the petitioner that he was detained by the police in the police station 2-3 days earlier to the alleged recovery and was tortured as well as given injuries on his person. When the petitioner was produced before the Magistrate, he moved an application upon which he was got medically examined under the orders of the Court and the doctor proved the injuries on his person received within 72 hours of the examination which covers the date of production of the petitioner before the Magistrate.

(3.) The first and the foremost contention of the counsel for the petitioner is that link evidence i.e. statements of Head Constable Tara Singh and Constable Hazara Singh who were entrusted with the case property in the police station and was taken to the Chemical Examiner, was initially adduced through affidavits but after defence evidence was recorded, in order to fill up the lacuna in the affidavits, prosecution moved an application for summoning of formal witnesses for their examination under section 296 of the Code of Criminal Procedure. The learned counsel contended that allowing the recording of statements of these two witnesses at late stage served the cause of the prosecution otherwise their testimony on affidavits was to be discarded as their affidavits were not in accordance with the provisions of section 297 of the Code of Criminal Procedure. The contention appears to be well merited. The prosecution closed its case on 24.02.1987, after tendering the affidavits of two witnesses, namely, Head Constable Tara Singh and Constable Hazara Singh. Thereafter the statement of the accused was recorded under section 313 of the Code of Criminal Procedure. But strange enough, these affidavits were not put to the petitioner in his statement under section 313 of the Code of Criminal Procedure as link evidence appearing on record against him. Thereafter, statement of DW1 Dr. J.S. Gujral was recorded who proved the medico-legal report Exhibit DA wherein he observed five blunt weapon injuries on the person of the petitioner though simple in nature. A reading of medico-legal report Exhibit DA shows that the injuries were on the left pinna, right side of fore-head, right side of cheek as well as on right and left buttocks. On 15.12.1987, an application was moved for examination of formal witnesses as aforesaid and they were so examined as subsequently another statement of the petitioner under section 313 of the Code of Criminal Procedure was recorded on 14.01.1988 but again link evidence produced through these two officials was not put to the petitioner for his explanation. It is well settled that any incriminting evidence which is not put to the accused under section 313 of the Code of Criminal Procedure for his explanation cannot be considered a part of the evidence and cannot be used against the accused person. Such evidence has to be excluded from the evidence in view of the law laid down by the Supreme Court in the case of Shard Birdhichand v. State of Maharashtra, 1984 AIR(SC) 1622, wherein it has been ruled that the circumstances appearing on record against an accused which were not put to him in his examination under section 313 of the Code of Criminal Procedure are to be completely excluded from consideration.