STATE OF PUNJAB Vs. DES RAJ

JUDGEMENT

(1.) A police party while raiding village Talwandi Chaudharian, recovered from the possession of respondent Des Raj a bladder containing, what later on was proved to be liquor, approximately two bottles in quantity, The samples sent to the Chemical Examiner was opined to be of liquor. Thereafter the respondent was tried Under Section 61 (1) (a) of the Punjab Excise Act (herein-after called the Act) for contravening the provisions of Section 25 of the Act.

(2.) AT the trial, the prosecution, besides examining Ajit Singh (PW 1) and Swaran Singh (PW 2), also placed on the record affidavits of formal witnesses in the exercise of power under Section 510-A of the Code of Criminal Procedure which constituted what may be termed as link evidence in the case. All the four affidavits were attested well before a decision of this Court was published, declaring that the affidavits of formal witnesses which were not attested in accordance with law would not be admissible in evidence as they were no affidavits in the eye of law. However, at the stage the respondent accused had made his statement under Section 342 of the (old) Code of Criminal Procedure and closed his defence, an application dated June 1, 1974, purporting to be under Sections 510-A and 540 of the said Code was moved by the prosecution, seeking to summon the formal witnesses whose affidavits had been placed on the record as by virtue of the reported judgments, the same had not been attested in accordance with law. The application was dismissed and thereafter vide order dated July 18, 1974 the respondent was acquitted on the short ground that there being no link evidence on the record to the effect that the sample was kept untampered and in proper custody or that the sample sent to the Chemical Examiner was the same that had been taken for the said purpose.

(3.) IT has been pointed out on behalf of the State that prior to June, 1972, the affidavits of the kind that were placed on the record of this case, used to be accepted in evidence in criminal cases and that it was only for the first time in his judgment dated June 13, 1972 in Som Nath v. The State 1973 Chand LR (Cri) Punj 156, that Tuli, J. pronounced that such kind of affidavit, being improperly attested, was no affidavit in the eye of law and this judgment was published in 1973 Chand LR (Cri) Punj 156. This was later on followed in other judgments, one of them being Ravel Singh v. State of Punjab (1974) 76 Pun LR 402. The question that arises for consideration is as to whether in such circumstances when the affidavit of the kind had been accepted as constituting good evidence till decision of Som Nath's case (supra), was it not in the interest of justice to permit the prosecution to rectify the technical defect either by placing on the record the affidavits attested in the prescribed manner or by adducing the evidence contained in the same, i. e. by summoning the deponents of those affidavits as witnesses.