IMPORTANT POINT
Where in a case under NDPS Act the link evidence is found defective as affidavits have not been verified in accordance with law accused can not be held guilty of an offence.

JUDGMENT

S.K. Jain, J. - Vide judgment of conviction and order of sentence, both dated 22.12.1991, the Additional Sessions Judge, Faridkot, convicted the petitioner under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as "the Act") and sentenced him to undergo R.I. for 10 years and to pay a fine of Rs. 1 lac and in default of payment of fine to further undergo R.I. for two years. The said judgment of conviction and order of sentence have been impugned in this appeal. The conviction of the petitioner has been challenged inter alia on the grounds, firstly, that in the absence of any independent witness, the conviction of the petitioner which rested on the testimony of the official witnesses alone was not sustainable. Secondly, that there is no link evidence to establish that the substance allegedly recovered from the petitioner and weighing 400 gms. was opium in as much as the verification on affidavits filed by the police officers was not in accordance with law. I have given a thoughtful consideration to the above arguments.

2. As far as the first argument is concerned, a reference to the material on record would show that one Gurpal Singh was joined in the investigation but was given up at the trial as having been won over but he was examined in defence as D.W. 2 and then he supported the case of the prosecution. It is true that vide Exts. DA, DB and DC, it is established that this witness had appeared as a prosecution witness in three cases of police station, Malout, and had been employed as a Cook for the last 10 years in the police station. Normally the testimony of such witness is disbelieved but here in the peculiar circumstances of this case his testimony becomes very material and inspires confidence. The accused is bound by the testimony of his own witness. The first argument, therefore, does not find favour with the Court.

3. Now on the second argument. Affidavit Ext. PJ has been made by Additional Moharrir Head Constable Sham Lal P.W. 6 and Ex. PB by Constable Baldev Singh. These affidavits relate to the fact that the substance and the sample recovered by P.W. 5, Inspector Sucha Singh in the presence of P.W. 4 A.S.I. Rachhpal Singh and D.W.2 Gurpal Singh were deposited in the store at the police station of which Additional Moharrir Head Constable Sham Lal P.W.6 was incharge and that the sample was sent for chemical examination through Constable Baldev Singh P.W. 3. These 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.

4. Under similar circumstances, it was held in the following judgments that such defects in evidence make no legal evidence so as to establish link evidence in the case Harjeet Singh v. State of Haryana1, Yash Pal v. State of Punjab2, Balvinder Singh v. State of Punjab3.

5. Seen in this light, there can be no escape from the conclusion that the affidavits Exts. PB and PJ are defective. That being so, 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 on the link evidence becomes of no use of 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.

Appeal allowed.

1. 1988 (l) C.L.R. 81.

2. Cri. Revision No.299 of 1988.

3. 1989 (1) RCR 643.