BALWINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE conviction of the petitioner has been challenged on the sole ground that there is no link evidence to establish that the substance allegedly recovered from the petitioner and weighing 8. 400 kgs. was opium. This means that the event of recovery, as such, has not been disputed by the learned counsel for the petitioner, and, thus, the evidence of PW I Sikander Singh and PW 2 Baldev Singh on that point goes unquestioned Affidavit Ex. PC has been made by Additional Mohamir Head Constable Jaspal Singh and affidavit Box PD by Constable Inderjit Singh. These affidavits relate to the fact that the substance and the sample recovered by PW 1 and PW2 were deposited in the store at the police station, and that the sample was sent for chemical examination. The affidavits have not been verified in accordance with law in as much as it has not been stated as to which part thereof was correct on the basis of belief and which part was true on the basis of personal knowledge. Such an argument was raised before the learned appellate court also but it was rejected on the ground that such verification was necessary only if the affidavit was divided into several paragraphs. This view of the lower appellate court was doubted by Ujagar Singh, J., Ing observations in the admitting order.

(2.) THAT such defects in evidence makes no legal evidence so as to establish link evidence in the case has been held by Ujagar Singh, J, in Harjit Singh v. State of Haryana, 1988(1) CLR 81. I am in respectful agreement with that view. Cr. Revision No. 299/1988 (Yashpal vs State of Punjab) was allowed yesterday, i.e. on 15-2-1989 by me. This case is adequately covered by the decision of Yashpal's case (supra). On the holding of the affidavits to be defective, there remains no link evidence to establish that the substance recovered from the petitioner was in fact, opium because report of the Chemical Examiner dependent upon the link evidence becomes of no use to the prosecution. Inevitably, for the neglect of the prosecution, the conviction of the petitioner has to be set aside and he is, thus, acquitted of the charge. Fine, if paid, be refunded to him. Order accordingly.