YASH PAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioner is aggrieved against the appellate order of the Additional Sessions Judge (III), Sangrur, whereby on the acceptance of his appeal, the case was remanded to the Judicial Magistrate Ist Class, Dhuri, for a fresh decision after the prosecution could tender fresh affidavits of the two police functionaries by way of additional evidence.

(2.) The case of the prosecution was that on September 30, 1984, the petitioner was seen coming on a cycle when he was intercepted by the police party headed by Head Constable Sardara Singh. On the carrier of his cycle, there was tied a tin wrapped up, which on opening contained 15 KGs of opium. A sample of 10 grams was separated therefrom by H.C. Sardara Singh, which was duly sealed separately. The case property and the sample were deposited by H.C. Sardara Singh with the AMHC Karam Singh at the Police Station on return.

(3.) At the trial, the prosecution examined Constable Harvinder Singh PW-1 and HC Sardara Singh PW-2 with regard to the occurrence. Avtar Singh PW-3 and AMHC Karam Singh PW-4 tendered their affidavits, Exhibits PG and PF respectively, with regard to the deposit the case property in the Malkhana and the sample being sent to the Chemical Examiner. The prosecution then closed its case, whereafter the trial was concluded, as ordained by law. The petitioner was finally convicted and sentenced by the Judicial Magistrate Ist Class, Dhuri, on September 9, 1986. He preferred an appeal in the Court of Session, Sangrur. The Additional Sessions Judge (III), Sangrur, was impressed by the argument of the petitioner that the affidavits of Constable Avtar Singh and AMHC Karam Singh were defective and thus could not be relied upon to prove that the substance recovered was opium. However, instead of giving the benefit thereof to the petitioner, he set aside the conviction and sentence of the petitioner and remanded the case back for fresh decision in accordance with law after letting the prosecution tender fresh affidavits of the aforesaid two police functionaries. It is to challenge that view that the petitioner has come to this Court.